Relief roads — Appearance of impropriety — Councillor’s son living in house in road affected by four out of five proposed options — Committee including councillor voting for fifth option further away — Complaint — Ombudsman finding councillor having interest — Whether failure to carry out balancing exercise — Councillor’s application for judicial review refused
A relief road for Harrogate had been in issue for a number of years. The applicant, B, a councillor of long standing and a member of the council’s highways and transportation committee. Five routes were to be considered, four of them affecting his son, whose house was close to those routes. It was resolved, by a majority of one, in June 1991 by the committee that the “blue” route, the route which was considerably further away from the son’s house than the other four routes, should be pursued. Thereafter, Mrs T complained to the council that B had an interest which he had failed to declare; that he had participated in the discussion and voted on the resolution; and that the road on which his son had his house would be crossed by the construction of the four other routes. The council resolved that B should declare a non-financial interest in the relief road decision and that he should abstain from speaking or voting on any further decision affecting it. The committee then met again and B took part in the discussion and voted and although others would have known of his interest by then he did not actually declare it. The blue route was carried by a greater majority.
The Ombudsman reported that: (a) B did have a non-pecuniary interest; (b) it ought to have been declared; (c) it was clear and substantial and not shared with the community generally. Mrs T was to receive an apology and £100 for time and trouble. B applied for leave for judicial review on the ground that the Ombudsman failed to conduct a balancing exercise between personal interest and his duty to his constituents: cf R v Holderness Borough Council, ex parte James Robert Developments Ltd [1991] EGCS 128. The Code of Local Government Conduct on local councillors dealing, inter alia, with local matters affecting their own interest, or that of their relatives, states that there is an “overriding duty … to the whole local community”. Further councillors were not “to allow the impression” that they “may be using their position to promote a private interest rather than forwarding the general public interest”.
Held The application was refused.
1. Holderness Borough Council (supra) which went to the Court of Appeal (see (1993) 66 P&CR 46), showed that different people could have different views about what was proper. However, the code now set out the way that members of local authorities were to behave.
2. The Ombudsman was perfectly entitled to come to the decision which she did without doing the balancing exercise. The code set out a dispensation procedure where a councillor declared an interest. Unfortunately B took the view that he was not obliged to declare an interest so any question of dispensation never arose.
3. The court would repeat that it was a case of appearance of impropriety and there was no allegation of actual impropriety against B.
Barry Payton (instructed by Godlove Pearlman, of Leeds) appeared for B; Jeremy Sullivan QC and Clive Lewis (instructed by Pulvers, of Watford) appeared for the Commissioner for Local Administration.
