Referral for Investigation

ASSESSMENT DECISION NOTICE

REFERRAL FOR INVESTIGATION

Important – this decision notice should not be taken that a finding or acceptance of a breach of the Code of Conduct has been found as assessment. It represents the view that a breach of the Code of Conduct would be found if the allegations contained within the complaint were proved. Whether there has or has not been a breach of the Code of Conduct can only be established following the conclusion of the investigation process.

Complaint

On 16 May 2013the Monitoring Officer considered a complaint from Mr and Mrs Biddick concerning the alleged conduct of Councillor Eustice of St Ervan Parish Council. A general summary of the complaint is set out below:

The Complainants have alleged that when planning application PA13/01336 was discussed by St Ervan Parish Council on 28 March 2013; Councillor Eustice failed to declare an interest in the matter despite his land being adjacent to the Application Site.

The Complainants have further stated that Councillor Eustice read out a letter written by himself to Cornwall Council’s Planning Service against the application, admitted opening a letter addressed to the Complainants, entered into discussions with members of the public, proclaimed his personal ill feelings towards the Complainants’ family and only left the meeting when directed by the Chairman to leave the meeting, prior to the vote on the application.

Decision

This matter is to be referred for investigation.

It is premature at this stage to give any indication of which paragraphs of the Code may be engaged, if any.

Reasons for the Decision

Insufficient information has been obtained to enable this complaint to be determined at assessment without the need to refer the complaint for investigation.

In assessing this complaint I have had regard to;

• the complaint as submitted by the complainant;
• the minutes of the meeting of St Ervan Parish Council dated 28 March 2013;
• plans showing the proximity of the development site to Councillor Eustice’s property.

In assessing this matter it has been considered whether Councillor Eustice has a disclosable pecuniary interest as set out in paragraph 5A of the Code of Conduct, or a non-registerable interest as is found at paragraph 5B.

In considering if this is a disclosable pecuniary interest first. The Code of Conduct makes it clear that any matter which is likely to directly affect a Councillor’s land, will create a disclosable pecuniary interest; paragraph 5A (iii) of the Code of Conduct states;

‘Land: includes an easement, servitude, interest, or right over land which does not carry with it a right for the relevant person (alone or jointly with another) to occupy the land or to receive income’

If it is considered there is not a disclosable pecuniary interest it would need to be considered whether there is a non-registerable interest. The Code of Conduct states at paragraph 5B the following;

You have a non-registerable interest where a decision in relation to a matter being determined or to be determined:

(i)might reasonably be regarded as affecting the financial position or well being of you; a member of your family or any person with whom you have a close association; or any body or group which you are a member of more than it might affect the majority of council tax payers, rate payers or inhabitants in your electoral division or area; and

(ii)the interest is such that a reasonable person with knowledge of all the relevant facts would consider your interest so significant that it is likely to prejudice your judgement of the public interest

If either interest exists the member is then required to act in accordance with paragraph 3.5 of the Code of Conduct which prevents them from participating, or participating further, in any discussions, participating in any vote, or further vote and requires that the member should remove themselves from the meeting while any discussion or vote takes place on a matter in which the member has a disclosable pecuniary or non-registerable.

In this matter, Councillor Eustice read out a letter he wrote to Cornwall Council’s planning department expressing his concerns on the proposed planning application and how it would directly impact on his land. If it is determined there is a disclosable pecuniary interest or non registerable interest it would have been more appropriate for Councillor Eustice to have arranged for someone else to have read out his letter at the meeting.

In considering the proximity of Councillor Eustice’s properties to the application site, it has been taken into account that one of the properties, Waverly Cottage, is adjacent to the application site, and is approximately 240 metres from the site and Trelinnick Farm is approximately 325 metres from the site. The total height of the proposed wind turbine is 27 meters and taking into consideration the flat terrain the proposed wind turbine would be visible to the Councillor’s properties.

It is therefore considered the decision on the planning application would have a direct impact on Councillor Eustice’s land. On this basis I would conclude there may be a disclosable pecuniary interest under paragraph 5A of the Code of Conduct. If this is shown at investigation; Councillor Eustice should have taken action in accordance with paragraph 3.5 of the Code of Conduct and should not have participated by reading out his letter, or participated further, in any discussions and should have removed himself from the meeting while any discussion or vote took place.

Should Councillor Eustice have a disclosable pecuniary interest in this matter which was un-declared then this has the potential to be an offence under s34 of the Localism Act 2011 and the referral for investigation is to allow the extent of Councillor Eustice’s interests to be accurately determined.

In considering whether Councillor Eustice has breachedthe Code of Conduct in respect of his behaviour regarding the allegation of him opening a private letter of the Complainants and alleged comments regarding the Complainants’ family; there is insufficient evidence to make a decision without further investigation. The matter of the interference with mail is sufficiently serious to amount to an offence under section 84 of the Postal Services Act 2000.

Councillor Eustice has not provided any comments to the alleged act of interference with mail, or the alleged comments regarding the complainant’s family. In addition, there is no witness evidence supporting the complainant’s allegations. In view of this, it would be appropriate to refer this matter for further investigation before making any decision, as on the information provided the potential breach of the Code of Conduct is sufficiently serious that an investigation should be undertaken to discount or substantiate the complaint and to determine what sanction, if any, is appropriate.

In reaching this decision I have had full regard to the views of the Independent Person.

What happens now?

This decision notice is sent to the Complainants, the member against whom the allegation was made and the Clerk to St Ervan Parish Council.

An investigating officer will be appointed to investigate the complaint on behalf of the Monitoring Officer who will be in touch with you as soon as possible. In relation to the investigation process, please see the attached guidance.

Terms of reference

In line with the legislative requirements of the Localism Act 2001 the constitution of Cornwall Council charges the Standards Committee of Cornwall Council with promoting and implementing the local assessment process for Code of Conduct complaints against members of Cornwall Council as well as members of the Parish, Town and City Councils within the Council’s area.

Additional help

If you need additional support in relation to this or future contact with us, please let us know as soon as possible. If you have difficulty reading this notice we can make reasonable adjustments to assist you, in line with the requirements of the Disability Discrimination Act 2000.

We can also help if English is not your first language.

SJR Mansell MBE

Principal Legal Officer

On behalf of the Monitoring Officer

Date:29 May 2013