Archived decisions

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1. Summary

1.1 This report conveys the results of an investigation undertaken at the request of the Regulatory Committee. The investigation concerns statements made by two deputees, Mrs Atkinson and Mr Barker, that members of the Regulatory Committee had advised them to make the two further applications, for registration of land as a village green, that were before the Regulatory Committee for consideration at its meeting on 23 June 2004.

2. Background

2.1 On 16^th July 2003, the Regulatory Committee considered and rejected an application to register land at Chivers Field, Romsey as a village green under the Commons Registration Act 1965. This followed a four day public inquiry and a report and recommendation by the Inspector that the application be refused.

2.2 The applicant for registration, Mrs C Atkinson, then submitted two further applications for registration dated 23^rd July 2003. Both applications were in respect of areas of land that had already been considered in the first application, that had been determined a week previously. The Inspector who had presided at the Inquiry into the first application, an experienced barrister, was asked to advise as to how these further applications should be dealt with. His advice was that they should be rejected as they raised the same issues as in the previous application.

2.3 The two further applications were then considered by the Regulatory Committee at its meeting on 23^rd June, 2004. At that meeting, deputations were received from Mrs Atkinson, and a Mr Barker. In the course of their deputations, they stated that they had been advised by members of the Regulatory Committee that, following the rejection of their earlier application, they should make the two further applications that had been submitted. In the debate which followed, members of the Committee expressed grave concerns about such advice having been offered, and felt that the relevant members should have declared an interest at the start of the consideration of the item. They felt that the Chief Executive should look into the matter.

2.4 The Committee did not accept a recommendation that the applications for registration be refused. However, their decision was rescinded at the next meeting of the Committee, on 28^th July 2004, when the Committee resolved that the applications be rejected. On 23^rd June 2004, the Committee had resolved that the Chief Executive should be instructed to carry out an investigation into the statements made by Mrs Atkinson and Mr Barker that members of the Regulatory Committee had advised them to make the two further applications.

3. The Chief Executive's Investigation

3.1 Both Mrs Atkinson and Mr Barker were asked, by letter, to provide a note by letter or email containing further information to substantiate the allegations that had been made in the deputations. They were asked to indicate when and where any conversations with members had taken place, precisely what was said by whom, and whether any other individuals were present at the time and would be able to verify these matters. They were informed that, if there was further information which they felt was relevant, to include it in their note.

3.2 All members of the Regulatory Committee, were also contacted by letter, asking for a short note, by letter or email, confirming the nature of any involvement that they had had with either Mrs Atkinson or Mr Barker in connection with the making of their applications. In particular, they were asked to include an account of any conversations that they had had with either of them, detailing the comments that had been made. If there was any correspondence with them about the matter, copies of this were requested. If copies were not available, members were asked to give a summary of any comments that had been made in the correspondence. The same request was made of those members of the Regulatory Committee who had attended the meeting on 16^th July 2003, but who had since left the Committee.

3.3 Mrs Atkinson responded in a letter dated 25^th July 2004 (see Appendix Item 4). Her comment on the allegations the subject of the investigation was as follows:-

"What I remember happening was that a couple of Councillors, in passing said to (Mr Barker) and myself that we might want to try again with the smaller area. I was in a very emotional state having just lost something that was very important to me and so involved with my father who had just died. I could not tell you who spoke to me, nor have I had anything to do with any of the Councillors since. In fact (Mr Barker) and I went down and collected the forms to reapply as we left the meeting, as we had already decided to do that if we lost the full area and had arranged to pick the forms up, by phone prior to the meeting."

3.4 Mr Barker responded by email dated 23^rd July 2004 (see Appendix Item 3). On the allegations the subject of the investigation, he stated as follows:-

"At the end of the meeting a number of people came to speak to Mrs Atkinson and myself who had been seated in the public seats in the meeting room.

As you will recall this was a very hot day and the doors onto the balcony were open to increase ventilation and consequently this let in the traffic noise and the noise of a power saw working on an adjacent building site. A group of people including some of the members of the Committee were speaking at the same time plus general conversation amongst other Committee members. I have a hearing loss due to military service and the direction of speech is very difficult to determine. There was encouragement from the assembled group to continue with the applications if not by spoken word by nodding of heads.

As members do not wear name badges and it is a year ago since this happened, it is clearly impossible to even try to name any persons. Perhaps the Council will therefore consider providing members with name badges to be worn at meetings when members of the public are present."

3.5 A number of responses have been received from those County Councillors asked to provide a note of any involvement that they had had. With the exception of two cases, those members submitting responses have said that they have had no contact with Mrs Atkinson or Mr Barker about the matter. A list of those councillors who have responded in such terms, and those councillors contacted but from whom no response has been received, is given in the Appendix to this report, at Item 5. The two cases where members admit to there having been some contact are dealt with below.

3.6 Councillor Ms Wride states that she spoke to Mrs Atkinson in passing at the meeting on 16^th July 2003, about an unrelated matter - the fact that they both have a family connection with Cornwall(see Appendix Item 1). She then says "I cannot recall exactly what else I said but may have said something like - perhaps if the application had been for a smaller area where there was evidence of use, there may have been a different result, or words to that effect." Councillor Ms Wride said that she considered this to be an exchange of pleasantries and would be astonished if it had influenced Mrs Atkinson to submit a further application. She points out that she did not take part in the debate or vote on the item.

3.7 Councillor Mrs Barron has stated that, after the refusal of the application in June 2003, Mrs Atkinson came to see her in her office in Romsey (see Appendix Item 2). Mrs Atkinson said that she had looked at the Inspector's comments, and felt that the Inspector had been encouraging a new application on a smaller site. Mrs Barron said that she had never read the Inspector's comments but did say to Mrs Atkinson "something along the lines of - that is encouraging are you going to do it?" She states that she did not advise her to try again as she had not seen and still has not seen the Inspector's comments. Mrs Barron's note is dated 23^rd July 2004. On the 26^th July 2004 notification was received that, with immediate effect, Councillor Mrs Holden-Brown was replacing Councillor Mrs Barron on the Regulatory Committee.

4. Issues

4.1 Consideration needs to be given to the position of Councillors Ms Wride and Mrs Barron. In each case, it is appropriate to consider (i) did they have a personal or prejudicial interest which was not declared in accordance with the Members' Code of Conduct, and (ii) if not, had they effectively pre-determined the matter so that they were no longer genuinely open to persuasion about it, at the Regulatory Committee meeting on 23^rd June 2004?

4.2 In the case of Councillor Ms Wride, there is no evidence to suggest that she held a personal interest in the matter before the Committee on 23^rd June 2004. There is no evidence to suggest that she was a member of any group lobbying in support of the application. As there was no personal interest, there cannot therefore be any question of a prejudicial interest. With regard to the question of pre-determination, she states that she said something like "perhaps if the application had been for a smaller area where there was evidence of use, there may have been a different result, or words to that effect". Councillor Ms Wride states that the statement was made in the context of an exchange of pleasantries. In these circumstances, it is fair to conclude that the statement was made as helpful advice on a possible further line to pursue, rather than indicating any final conclusion already reached by the member as to the position she would adopt should a further application be pursued. This statement refers to the fact that the outcome would depend on the evidence of use, which at that stage had not been seen and remained to be assessed. It is reasonable to conclude that there was no pre-determination in this instance. In any event, it is worth noting that Councillor Ms Wride states that she did not take part in the debate or vote on the item.

4.3 With regard to Councillor Mrs Barron, there is also no evidence of any personal interest, and no evidence that she was a member of any lobby group in support of the application. No prejudicial interest could therefore arise. With regard to pre-determination, Mrs Barron states that when approached by Mrs Atkinson in her office, Mrs Atkinson informed her that she felt the Inspector was encouraging a new application on a smaller site. She responded by saying "something along the lines of - that is encouraging, are you going to do it?" The fact that she used the term, "that is encouraging" suggests that she may have been in favour of a new application being submitted on a smaller site. However, the member also points out that she did not advise Mrs Atkinson to submit a new application as she had not seen and still has not seen the Inspector's comments. Effectively, this meant that she was unable to come to a final view on the merits of any such further application. In these circumstances, it is reasonable to conclude that the member was simply assisting a member of the public in understanding and utilising the procedures available to them to pursue something about which the applicant felt quite passionate.

4.4 Even if neither Councillor had pre-determined the matter, there is nevertheless the possibility that the words spoken, in either case, could have been misinterpreted and taken as an expression of tacit support. A learning point from this case may be that, where comments are made, such as those referred to, they are tempered by the caveat that the member of the public must realise that the member had not yet formed any final view on the matter and will keep an open mind about it until all the relevant evidence is available. However, it must also be appreciated that in this case, Mrs Atkinson states that she and Mr Barker had already made up their minds before the Regulatory Committee meeting of 16^th June 2003, that they would put in a further application if their application was unsuccessful. In her statement she refers to having arranged by telephone, prior to the meeting, to pick up the relevant forms, and that they did indeed pick up those forms as they left the meeting on 16^th June 2003. The intention to submit the further application had therefore been formed well before any of the comments referred to had been made by Councillors Ms Wride or Mrs Barron. Further, Mrs Atkinson states that she did not have anything to do with any of the Councillors after the meeting on the 16^th June 2003. She has not therefore recalled the occasion related by Mrs Barron, where she same into Mrs Barron's office in Romsey. It is fair to conclude therefore that Councillor Mrs Barron's comments had no significant influence on Mrs Atkinson's decision to pursue her further applications.

5 Conclusion

5.1 Having regard to all of the above, the conclusion reached is that there is no evidence of any interests not being declared, that should have been declared, at the meeting of the Regulatory Committee, in respect of this item, on 23^rd June 2004. Nevertheless, the case highlights the dangers that can arise in the handling of applications for registration. It is suggested therefore that the Committee receives a short training session on the principle of the Planning Probity Code and pre-determination, and that a protocol is developed to guide members and applicants on the involvement of members in the handling of applications.

6. Recommendation

6.1 That the report and conclusions of the Inquiry be noted.

6.2 That members be reminded that, when speaking to a member of the public about an application that may be considered in due course by the Regulatory Committee, it is always wise to temper any comments, which may be regarded as encouraging, by saying that the member has not formed any final view on the matter and will maintain an open mind on the subject until all the evidence is available, and

6.3 That the Committee receives a short training session on the Planning Probity Code and pre-determination, and,

6.4 That a protocol be developed to guide members and applicants for registration on the involvement of members in the handling of applications.

Section 100 D - Local Government Act 1972 - background documents

The following documents discuss facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report.

NB: the list excludes:

1. Published works

2. Documents which disclose exempt or confidential information as defined in the Act.

TITLE: LOCATION:

Responses to letters listed in the Appendix Chief Executive's Department file

APPENDIX 1

Item 1 Statement by Cllr Ms J Wride dated 6^th July 2004

Item 2 Email from Cllr Mrs Barron dated 23 July 2004

Item 3 Letter from Mr Barker dated 23^rd July 2004

Item 4 Email from Mrs Atkinson dated 25^th July 2004

Item 5 List of members contacted and from whom no response has been received.