REPORT OF REVIEW OF THE ACTIONS OF MINISTERS SHIMMIN AND SKELLY AND WHETHER THEY KNOWINGLY FAILED TO DECLARE A CONFLICT IN RELATION TO PLANNING APPLICATION 15/00124/B PART 1 ANGELA MAIN THOMPSON O.B.E. DATED 18 FEBRUARY 2017 The Complainant APPENDIX 4: Correspondence with the Ministers ........................................................................................ 64 3 The development and lodged his paper on 20 May 2015, complainantwas included as an "interested person". 6. The appointed independent Planning Inspector, Mr Stephen Amos, held an inquiry on 17 June 2015, following a site visit on 15 June. Meary Voar Developments Ltd was represented by Mr G. Steele QC who called evidence from the architect and a town planning consultant. g,:,plainant who had provided written objections also gave evidence and the senior planning officer, Witnessc , was also questioned. 7. Before dealing with the Inspector's recommendations, it is necessary to go back to the original application made in 2011 and approved in 2012. That application was contentious and, as indicated, opposed by �,ptainant. Between the application being lodged and its consideration by the Planning Committee, the then Minister for Infrastructure, Mr David Cretney, presented to Tynwald in February 2012 a consultation document on a draft planning policy statement C'PPS") which was to have immediate effect. The purpose of the statement was to ensure that the planning system supported economic and employment growth. The Department would have regard to the development plan and, in particular, would seek proposals to be supported by evidence demonstrating that the proposed development would secure sustainable, long-term, economic growth of Island-wide benefit. The wider benefits of economic development would be considered alongside any adverse impact. Following this statement, the Department for Economic Development C'DED'') sent four letters, each signed by the then Minister, Mr John Shimmin, to the Planning Directorate before planning consent was given on 24 July 2012. 8. The 2015 planning application was also supported by the Department for Economic Development and, by the time of the planning inquiry, the Minister, Mr Laurence Skelly, had signed a letter dated 5 May 2015 which was before the Inspector. All five letters are appended to this report as Appendix 2. It should be noted that it has not been possible to number the pages within either Appendix 2 or Appendix 4 for technological reasons. 9. Despite the letter of support from Minister Skelly, having considered all the evidence, the Inspector recommended that planning approval be refused. He concluded that the site lay in the countryside outside those areas zoned for development and it would be contrary to the provisions of General Policy 3 of the Isle of Man Strategic Plan as it did not come within any of the exceptions provided for in the policy. Further, the proposed building would be an alien and obtrusive feature which would cause significant harm to its countryside surroundings. 10. The planning application was listed as the last matter on CoMin's agenda for the meeting on 6 August 2015. Four ministers, Messrs Gawne, Quayle, Shimmin and 5 Skelly, disclosed a conflict of interest and withdrew. CoMin did not determine the planning application, but decided to seek further advice from its own Planning Adviser, Mr Mike Ash. 11. The next CoMin meeting was held after the summer holiday, on 3 September 2015. On 28 August 2015, in accordance with the normal procedure, the Secretariat uploaded the Agenda to the Ministers' BoardPads the agenda, the minutes of the last meeting (in full, whether or not a Minister had withdrawn) and the papers to be considered by CoMin, including the report from Mr Ash. 12. On 3 September two Ministers (Messrs Ronan and Watterson) were absent and Messrs Gawne and Quayle withdrew when the planning application was discussed as the 19th and final item on the agenda. Neither Mr Shimmin nor Mr Skelly withdrew. Although Mr Ash's report recommended refusal, because the economic benefit did not outweigh the adverse environmental impact, CoMin approved the planning application. The parties, including �, 1ainaat as an interested person, were informed of p this by the Planning Appeals Administrator on 11 September 2015. 13. '!!:,mplainant was aggrieved by the decision and sought further information. He received the summary of the proceedings of the Council of Ministers for September 2015 in n respect of the planning application. f ;:,P!.aina noted that "The Minister for Health and Social Care and the Minister for Infrastructure were not in attendance for this item" and correctly concluded that "there were members of CoMin participating in the determination whose Department had a direct interest in a particular outcome ..... or who had lobbied the PC [Planning Committee] previously on behalf of the applicant.". rhecomplainantwrote to HM Acting Attorney General complaining of the undeclared conflict of interest and "the unacceptable behaviour which fell below the standards set by the OCPA principles". 14. HM Acting Attorney General replied on 14 December 2015, suggesting that rheeomplainant write directly to the two Ministers concerned (or their Departments) to clarify the nature of their previous dealings with the planning application. 15.%;!, ainantWrote to both Ministers and on 18 December he wrote to the Chief Minister asking him what action he proposed to take. Following advice from HM Acting Attorney General, on 10 February 2016, proceedings were issued in the High Court on behalf of the Council of Ministers seeking to quash the decision of 3 September 2015. Before the proceedings were served, however, perhaps in the course of preparing affidavits, the Attorney General's Chambers learnt that the CoMin meeting on 3 September 2015, even with Ministers Shimmin and Skelly present, had been inquorate and the claim form was accordingly amended. 6 16. On 7 April 2016, a Consent Order was made by the High Court, quashing the decision of CoMin dated 3 September 2015 and remitting the planning application to CoMin to determine it within 28 days, CoMin was ordered to pay the company's costs. On 3 May 2016 CoMin again considered the planning application. Ministers Gawne, Shimmin and Skelly recused themselves declaring conflict of interest. Minister Quayle, whose perceived conflict arose from his having been Chairman of the Planning Committee in 2012, remained present but took no part in any discussion nor in the decision. Without his presence, CoMin would have been inquorate. The Witnesses 17. For the purpose of the Investigation, I interviewed the following witnesses whose evidence I summarise below and whose statements are included as Appendix 3. The statements as recorded have been checked and agreed in the case of officers and The complainant. Neither Minister provided comments on his statement. As the Solicitor General was providing only details of the Court proceedings, which are a matter of public record, it was agreed that no statement from him was necessary. 2 September 2016 Complainant 22 September 2016 wmressA Planning Appeals Administrator, Cabinet Office 22 September 2016 WitnessB Personal Secretary, -------OED 23 September 2016 - Senior Planning 27 September 2016 - itnesso 11111 Senior Personal Secretary to the Minister for Policy and Reform, Cabinet Office 27 September 2016 witness£ Assistant Secretary to CoMin, Cabinet Office 29 September 2016 WitnessF Business Development Manager, OED 10 October 2016 Minister Laurence Skelly (MS), Minister for Economic Development 12 October 2016 John Shimmin (JS), Former Minister 7 October 2016 Walter Wannenburgh, HM Solicitor 7 did not know whether there would be a conflict as he was unsure of the CoMin procedure. Chris Corlett 36. My purpose in interviewing CC, who was still Chief Executive at the time of the meeting on 11 November 2016, was primarily to see what recommendations he could suggest for the avoidance of future conflicts of interest. In the event, he provided no suggestions, but his attitude to the problems was instructive if, as Chief Executive, he was giving a lead to other members of the Department. 37. I began by asking him about governance in DED. He said that it was very difficult with Ministerial use of social media. He confirmed that he had no access to MS’s emails and relied on MS telling him about anything important he was doing. It was clear therefore that meetings held by the Minister with individuals external to Government were being conducted by the Minister alone and that notes of such meetings were not being filed, in breach of paragraph 2.9 of the Ministerial Code. MS and CC spoke daily on the telephone and had face to face meetings several times a week. For meetings, CC took a number of bullet points for discussion, but if they were to discuss a matter of importance requiring Ministerial approval, he would take the e-mail trail or papers for decision. CC said he was concerned as Accounting Officer that the lack of communication with Departmental Officers meant that he was unable to offer advice to the Minister on policy proposals and might be unaware of evolving policy development. As a consequence, officials might inadvertently not always be working to take forward the Minister’s vision. 38. I spoke to CC about the policy of supporting HNWIs to grown the economy, and specifically asked him about due diligence checks. My note of our discussion recorded that CC had stressed the importance of trust in the relationship, but CC amended the note to suggest that due diligence checks were carried out on the HNWIs, but the HNWI’s plans might change after planning consent was obtained. DED had estimated that HNWIs had created 1700 jobs. CC cited as an example the where the HNWI in question had said he would make provision for the disabled and disadvantaged. He had done so, although CC pointed out that DED would have had no sanction if he had not.