Monitoring Officers’ Ethical-Standards Advice and Councillor Self-Recusal: No Invalidity of Planning Permission Absent a Disqualification or Procedural Irregularity

1. Introduction

This judicial review arose from a planning committee’s decision (15 April 2025) to grant conditional planning permission for a 40 MW battery energy storage facility (a “battery farm”) near Eaglesham. The petitioner, a notifiable neighbouring objector, sought reduction of the permission on a narrow procedural ground: that a committee member (Councillor Edlin) did not attend the meeting and therefore did not vote, allegedly because the council’s monitoring officer (Mr Mahon) misdirected him, failed to meet natural justice standards, and effectively “wrongfully prevented” his participation by invoking potential Standards Commission consequences.

The central legal issue was not the planning merits, but whether the permission was vitiated because a councillor chose not to participate after receiving ethical-standards advice in response to an anticipated challenge to his impartiality.

2. Summary of the Judgment

• The petition was dismissed and all remedies refused.
• Lord Lake held that Councillor Edlin was not precluded from participating and was not told he could not vote; he made his own decision not to attend.
• The court rejected the characterisation of the monitoring officer’s statements as a “threat” or wrongful prevention; they were an explanation of potential consequences if a complaint were made.
• The petitioner’s concession that the advice was “not wrong” undermined allegations of misdirection.
• There was no duty on the monitoring officer to advise the councillor of “options” such as seeking adjournment/postponement; therefore the advice was not legally “incomplete.”
• No natural justice issue arose: no allegation against Councillor Edlin was being adjudicated at that stage.

3. Analysis

3.1 Regulatory and statutory setting: the Councillors’ Code and ethical enforcement

The factual trigger was an intended objection (by another councillor) to Councillor Edlin’s participation, based on alleged comments at a community council meeting describing the proposal as an “eyesore.” Lord Lake treated the relevant legal framework as the Ethical Standards in Public Life etc (Scotland) Act 2000 and the 2021 Councillors’ Code, enforced by the Commissioner for Ethical Standards in Public Life in Scotland and the Standards Commission for Scotland.

The Opinion highlights the Code’s particularly strict approach to quasi-judicial/regulatory matters, focusing on paragraph 7.5(e)-(g), including that if a councillor expresses any view on the application before the appropriate meeting, they “will not participate” and will not vote. The court contrasted this with the more permissive common-law position on predisposition and closed minds (discussed below).

3.2 Precedents cited (and how they were used)

Neath Port Talbot County Borough Council v Ware [2007] EWCA Civ 1359

This was the most factually analogous authority and the backbone of the court’s reasoning. In Neath Port Talbot, councillors abstained after officer advice (there: about not attending a site visit). The Court of Appeal upheld the decision because the advice did not disqualify the councillors; it identified potential difficulties and left the councillors to decide for themselves.

Lord Lake applied the same principle: where advice is correct and leaves the decision to participate to the councillor’s own judgment, the eventual abstention does not constitute a procedural irregularity vitiating the planning consent.

Hartlands (NI) Ltd's Application for Judicial Review [2021] NIQB 94

The petitioner relied on Hartlands, but Lord Lake distinguished it. In Hartlands, Scoffield J found impermissible pressure such that exclusion from participation was not a true exercise of the councillor’s own judgment. Lord Lake contrasted that with the present facts, where the councillor decided not to attend, including after discussions with other councillors.

R v Flintshire County Council, ex parte Armstrong-Braun [2001] EWCA Civ 345; [2001] 3 LGR 34

Considered within the discussion of Hartlands, this case illustrated unlawful interference with democratic participation (a standing order preventing a lone councillor from raising matters without a seconder). Lord Lake treated it as addressing a different species of wrong: a rule structurally excluding participation, rather than a councillor’s personal decision following correct advice.

R (Lewis) v Redcar and Cleveland Borough Council [2009] 1 WLR 83 and R v Amber Valley DC Ex p Jackson [1985] 1 WLR 298

These cases were held not to assist on the decisive issue. They concern whether a decision is invalid because participating decision-makers had prejudged matters (“closed minds”) or there was an appearance of bias. Lord Lake emphasised that the present challenge was the inverse: whether a decision is invalid because a councillor did not participate.

Importantly, the court also clarified the relationship between common-law standards and the Code: the Code sets a higher bar than common law for councillor conduct (a policy choice aligned with “high standards” in public life). So, even if participation would not have invalidated the decision at common law, it could still have risked a Code breach.

R (Mansell) v Tonbridge and Malling Borough Council [2019] PTSR 1452 and Allanvale Homes (Prestwick) Limited, Petitioners [2026] CSOH 25

These concerned officer reports and material misdirection of members by erroneous reports. Lord Lake distinguished them because there was no challenge to the committee’s report here, and the petition expressly accepted the advice to the councillor was “correct.”

Kanda v Government of Malaya [1962] AC 322 and X, Petitioner 2022 SLT 157

These authorities on natural justice/fair hearing were held irrelevant on the facts because no allegation against Councillor Edlin was being determined; he was simply being warned of a prospective challenge and potential later Standards Commission processes. The Kanda principle would arise only if a complaint were pursued and adjudicated.

R (Berky) v Newport City Council [2012] 2 CMLR 44 and R (on the application of The Spitalfields Historic Building Trust) v London Borough of Tower Hamlets and another [2025] UKSC 11, [2025] PTSR 700

These were cited in argument, but they did not materially shape the ratio as expressed by Lord Lake, which turned on (i) absence of disqualification/compulsion and (ii) no relevant duty to provide “options” advice.

3.3 Legal reasoning (why the petition failed)

(a) No exclusion, no disqualification, no procedural irregularity

The core factual-legal finding was that the councillor was not barred from the meeting and was not told he could not vote. He chose not to attend. Lord Lake treated the petitioner’s framing (“wrongfully prevented,” “under threat of penalty”) as a material misrepresentation of what occurred.

(b) “Correct but incomplete” advice: the court rejects a duty to advise on options

The petitioner’s most developed point was that the monitoring officer should have told the councillor he could attend and seek adjournment/postponement. Lord Lake rejected that there was any such duty, noting the Standards Commission guidance (“Role of a Council Monitoring Officer,” August 2024) describes monitoring officers as providing advice/support to interpret and apply the Code, including intervention where there is concern of a breach or imminent breach, but not a duty to canvass procedural “options.”

(c) Natural justice not engaged

Since no disciplinary finding was being made and no complaint was being adjudicated, the procedural fairness protections associated with being “told the substance of the case against you” did not apply at this stage.

(d) The petitioner’s pleadings were internally inconsistent

The Opinion repeatedly returns to the petition’s concession that the advice was “not wrong.” Given that concession, allegations of misdirection and unlawfulness were difficult to maintain absent some independent duty breached (none was established).

3.4 Impact and significance

• Planning challenges based on absence of a councillor are constrained: This decision reinforces that a permission will not be reduced merely because a councillor did not participate, where non-participation followed correct advice and a personal choice rather than compulsion or unlawful exclusion.
• Monitoring officer communications are not readily recharacterised as “threats”: Explaining potential Standards Commission consequences, in response to a councillor’s question, was treated as informational rather than coercive.
• No general “options-advice” duty is recognised: Monitoring officers may advise on Code compliance; they are not required (at least on these facts) to advise councillors on tactical or procedural alternatives such as seeking adjournment.
• Clear separation between common-law bias standards and Code standards: The Opinion underscores that councillor conduct may be constrained by the Code beyond what common law would require to uphold the validity of the planning decision.

4. Complex concepts simplified

4.1 “Reduction” in Scottish judicial review

“Reduction” is the remedy that sets aside (quashes) an unlawful decision. The court’s focus is on legality (procedure, powers, fairness), not whether the development is a good idea.

4.2 Natural justice and “the case against you”

Natural justice requires fairness where a person faces an allegation being decided by a decision-maker (for example, disciplinary proceedings). Here, the councillor was not being judged; he was being alerted to a potential complaint and the ethical framework, so the natural justice cases did not “bite.”

4.3 “Predisposition” vs “predetermination,” and the Councillors’ Code

Common law generally tolerates councillors having views (“predisposition”) so long as they do not decide with a closed mind (“predetermination”). The Councillors’ Code can be stricter: it can require councillors not to express views at all before a meeting on quasi-judicial/regulatory matters, and can mandate non-participation if they have done so.

4.4 Procedural irregularity through officer advice

Officer advice can vitiate a decision if it materially misdirects the decision-makers. But where the advice is correct and does not disqualify members—leaving the final choice to them—the decision is unlikely to be unlawful merely because members abstain.

5. Conclusion

[2026] CSOH 56 confirms that a planning permission will not be reduced simply because a councillor did not attend and vote after receiving ethical-standards advice, where the councillor was not excluded or disqualified and made the non-attendance decision personally. The Opinion anchors that result in Neath Port Talbot County Borough Council v Ware [2007] EWCA Civ 1359, distinguishes authorities concerned with forced exclusion or material misdirection, and rejects an asserted duty on monitoring officers to advise councillors of procedural “options” beyond Code-compliance guidance.