Official Report 160KB pdf
Our first agenda item is the Planning and Compulsory Purchase Bill. Patrick Harvie has indicated that he has been held up but will arrive later.
Good morning, everybody. I thank the committee for allowing me to speak to the Sewel motion and memorandum on the removal of Crown immunity from planning control through the Planning and Compulsory Purchase Bill at Westminster.
I thank the minister for her opening remarks. She will know that my political colleagues and I are never comfortable with Sewel motions. That subject will be debated on the floor of the chamber, so I will not pursue it at the moment. However, I have a number of questions that are fairly straightforward but which may help to inform the debate when it takes place.
Mr Stevenson will be very aware that I am very aware of the planning application for Addiewell, given its proximity to my constituency. We are using his arguments for the retention of Peterhead prison to reassure people in West Lothian that provision of a prison there will not bring with it some of the problems that concern them.
The provision will be in accordance with the plans of operations, or other working planning, that are approved by the Forestry Commission. The normal arrangements for the preparation of such plans, and for the accountability of the forestry commissioners in respect of those plans, would apply.
The provision that we are talking about relates specifically to tree preservation orders; it is not a general exemption.
I understand.
I welcome the bill, which will bring the Crown into normal planning processes. I am a bit concerned about paragraph 8 of the Executive's memorandum, under the heading:
It would be for the Crown body to prove that a development was urgent and needed to go ahead without delay. To give an example, I return to the issue of prisons. If there had been a fire in a prison, temporary accommodation might be put in that was not suitable. It would then be possible to concertina the application for rebuild and to shorten the delay in providing permanent accommodation. Be assured, however, that although the time scale could be shortened, we are not saying that there would be no consultation. There would be consultation, and information would still be available on what was being proposed. It is just that the eight weeks in local authorities—and the time scales elsewhere in the consultation process, however long they are—might be shortened. The process would still be open.
Do local authorities not have a mechanism for dealing with such things through the local democratic process? I appreciate the point about the time for planning notification, but, in the example that you gave, why would the local authority not be able to deal with that situation?
Because it is still possible to appeal against such an application. The example may not have been great, but if there is a requirement for something to be done very quickly, it is still possible to appeal. After the eight weeks, there would then be the period of appeal. The new measures would shorten the overall period because the first period would be removed. The decision would therefore be quicker.
Other members' reservations over the use of Sewel motions notwithstanding, I feel that the Westminster bill is an appropriate vehicle to remedy a long-standing problem in some parts of Scotland.
How will the increased regulation affect certain environmental issues? I am thinking in particular of the large tracts of land that are owned by the Ministry of Defence. Will Scottish Natural Heritage get more powers to designate sites of special scientific interest? Will the proposed legislation apply the provisions of European directives? Will additional environmental regulations apply on MOD land?
The general principle behind the change to the planning system is to ensure that the decision-making process is more open and accountable. As Scott Barrie has just suggested, that has not been the case in the past. People have not always been able to know exactly what proposals have been made, and they have not been able to contribute to the discussions around them. We seek to bring the legislation in this area into line with the rest of the planning system, which allows for an open debate to take place.
SSSIs are not designated under the planning legislation itself. The bill is about bringing to bear a specific set of statutory requirements on the Crown. That said, planning legislation contains requirements to consult SNH. If a development is proposed in an SSSI, there is a statutory requirement to consult SNH and to take on board its comments. That can trigger further steps in the process.
Is it the case that SNH has, in the past, been excluded from those areas of land that have been under Crown immunity? Is it right that if the areas involved were of outstanding natural beauty or concern, or if there were some unique species there, SNH would not have been able to exercise any powers over those areas? Will SNH now have the power to go in and designate land?
Only in so far as we are talking about planning legislation. As I said, planning legislation is not used to designate land.
I understand that; I am asking whether one thing leads to the other. It is a big issue in the Highlands.
The intention is to open things up so that they are more transparent. Agencies such as SNH will be consultees, and they will therefore be able to consider such situations in more detail than was possible in the past. Although that opportunity was never closed to them, the legislation will give agencies a footing on which they can ensure that they are consulted.
Yes, that was really my point. If SNH designates an area of land that is currently used by the MOD, the ministry might in effect be excluded from training on that land. Is that a possibility?
Yes, although such decisions would be based on environmental directives not on planning legislation.
But the proposed legislation will open the door for that to happen.
It will allow SNH to become one of the consultees through the normal, open consultation process.
First, I apologise to the committee for arriving late.
I want to be clear that I was in no way saying that those proceedings would be carried out in secret—
But they would not be held in public.
As far as an urgent Crown development or urgent works on Crown land were concerned, such an approach would enable the process to happen more quickly. However, people would still be notified of any works.
So objectors would be able to argue that a particular development was not urgent.
Yes, but I am not sure about the process for doing so.
Basically, it would be up to the developing department to make the case whether works were urgent and the statute would also require the department to demonstrate that the works were of national importance. A submission would be made to Scottish ministers, which would trigger the urgent development procedure. Scottish ministers would then deal with the matter in the same way as they would deal with a case that had been appealed to them or which they had called in for a decision. As the minister has explained, the urgent development procedure simply accelerates the process by which a matter arrives with the Scottish ministers. The process and level of scrutiny would be the same and ministers would have regard to objections, which would be made in the same way.
And the same would apply if a Crown body sought to demonstrate that a development was relevant to national security.
Yes.
The arrangement is slightly different. We have devised a system to ensure that it will not be possible to put certain national security issues into the public domain; however, we are putting in place an arrangement that would allow special advocates to act on behalf of objectors to ensure that their views were known and considered in the process. We are trying to facilitate objections in cases involving issues of national security in which information cannot be made freely available to the general public.
Under the current law, there is no requirement for planning permission to build a Parliament building or a large Government office block in Leith. Am I correct in saying that when the bill is passed such projects will need planning permission?
Sorry?
At present, someone who builds a large Government building does not need planning permission. However, they would require such permission under the terms of the bill.
Yes. At the moment, departments can notify their intention to develop a building. However, that does not give people the opportunity to object or to make representations on the application. We will put the matter on a statutory footing to allow people to have such an opportunity.
Theoretically, if this legislation had been in place, the City of Edinburgh Council could have refused planning permission for Victoria Quay or the Parliament building.
Yes.
Of course, the Government could then appeal the decision—and would consider its own appeal, which raises other interesting issues.
Like any other applicant, the department would have the right of appeal.
Following on from Scott Barrie's point, I am not clear about what is still Crown land—if that is still the right description. I wonder whether we could have a general—not specific—list of such land.
We can provide such a list, although it will not cover every piece of land that would be affected. Basically, the proposal covers Crown lands and those that belong to the Government—land in which Government departments have an interest. We can provide members with that information in a clearer form.
I refer to the point that Scott Barrie made about privatisation, if that is the right word. I am not sure how much that has affected the situation. It would be helpful if we could be given a list.
We can provide that.
Thank you.
First, I want to comment on the use of Sewel motions. I remember that when the Scottish Parliament was established, Donald Dewar said that they were to be used sparingly, but it seems that they are being used increasingly frequently. The minister suggested in her opening remarks that much that is proposed in the memorandum could have been dealt with by the Scottish Parliament. Although the measures will clearly be beneficial to many people, perhaps if something can be done here, it should be done here.
I will deal first with the issue of the Sewel motion. Unfortunately, Mr Dewar is sometimes misquoted on that matter. He said:
In the first instance, the relevant UK secretary of state or the Scottish ministers, after consultation of the secretary of state, must be satisfied that the giving of evidence would be likely to result in disclosure of information relating to national security or to the measures that have been, or will be, taken to ensure the security of any premises. Ministers will receive an application from the developing department stating that it considers that disclosure of information about the layout of a prison or a Ministry of Defence development somewhere in Scotland would be contrary to the national interest. Ministers must be satisfied that that is the case.
It is more a matter of the direction from which the provisions are coming. If an advocate was appointed, would he or she call for people to come forward? Could an individual ask the Lord Advocate to appoint an advocate to carry out—
As in any other circumstances, representations may be made to the advocate. In a case such as Campbell Martin describes, it would have been appropriate to appoint a special advocate.
What recourse would someone have if the Lord Advocate said no to that?
The normal provisions would apply, whereby the Lord Advocate and the ministers would be required, under the general law, to act reasonably. They could be challenged by way of recourse to the court in respect of any decision not to appoint a special advocate. There is provision in the bill for making rules as to the procedures that are to be followed. The detail of how the procedures would be set out would be for the Scottish Parliament to consider by way of subordinate legislation.
Although we have been putting forward the principle and have been outlining what would happen, a great deal of these matters will be decided through subordinate legislation. There will therefore be another opportunity for members of the Scottish Parliament to examine the details and to reassure themselves that they are happy with them.
I assume, from what has been said so far, that the proposed extension at the Dungavel immigration removal centre, for example, would be subject to planning procedures if the bill were passed, unless the case were made that it should not. When the legislation goes through, will everything have to comply from that time? If intent to make a development had been intimated, would there be an exemption? When exactly would the legislation take effect?
On your first point, there will be transitional arrangements for developments that exist at the moment and which have not been subject to the measures that we are now proposing. It will be assumed that, in such cases, the appropriate planning permission will have been agreed in the past.
I wish to clarify that further. If a building were already in place, and an extension was proposed—I used the example of Dungavel—would that extension be exempt during the transitional period?
The building will be acceptable because it already exists. If a proposal for an extension were made, that would fall under the new regulations.
We have been asked to decide whether we have any concerns to report to the Parliament. From the earlier discussion, it is clear that members have views on the use of Sewel motions. However, that is not what we are being asked about at the moment. During the forthcoming debate in the chamber, Stewart Stevenson will, as he indicated, not be bound by what the committee says on the matter. Aside from that, does the committee have any concerns to report to the Parliament about the substance of the measures that are proposed in the bill?
I still think that there is some ambiguity about whether objectors will in Crown planning cases have the same opportunities to object and have their objections heard as they do in private cases.
Would that be dealt with in subordinate legislation, which would allow us to examine matters at that stage?
I am not sure what the ambiguity is. The whole point is to put matters on the same footing as the existing planning system. Representations from objectors will therefore be open and public. Details of how that will happen will probably come through in subordinate legislation. I reassure the committee that the new measures will allow objectors—in the cases of applications that have previously been granted Crown immunity—to have their full say and to have their opinions acted on.
If an objection to a local authority application goes to ministers for a decision, the objectors are free to ask for a public inquiry and free to make their objections known in writing. Will objectors to Crown applications have the same opportunities?
The Crown is being brought into the statutory planning legislation regime, and the right to be heard is given in statute to the developer, the applicant and the planning authority. If a case goes to a planning inquiry, or if an appeal has gone to Scottish ministers, that right exists for the developer, the applicant and the planning authority. The Crown will not be in a different position.
I suggest that the committee draw Parliament's attention to the Crown's exemption from criminal sanctions, and that we observe that that exemption must not be used as a cloak to prevent criminal prosecutions of officials acting in the Crown's name.
I will deal with those suggestions in a moment, but are there any other comments?
We have discovered that SNH is likely to have more input than before on Ministry of Defence land. I would like clarification on who has the final say over such land. Historic Scotland and the Ancient Monuments Board for Scotland could also be involved. If the MOD is restricted in its operations, who has the final say over quangos? Quangos are likely to have more powers and there are concerns about the impact that that will have over the vast tracts of land that are currently used by the MOD.
We seem to have gone back to asking questions.
I would like that point to be raised.
With respect, we were considering whether we wanted to report anything to Parliament. I will ask the minister to clarify the point and then come back to Mary Scanlon to ask whether she wants to report something to Parliament. We will then deal in turn with other points that have been raised.
I can only repeat what I have said. We take the planning system for granted in other areas but we have not been able to apply it in the past to land that is covered by Crown immunity. The new measures will make the system more open and accessible for those who have an interest in, or an objection to, an application on such land. Bodies such as SNH will be allowed to take part in that process. I hope that the measures will allow a cross-section of views to be heard before a planning decision is taken in the normal way.
But the question is: who has the final say? I know from SNH's operation in the Highlands that it always has the final say. Will it have the final say over MOD and other land that comes within the terms of the proposed legislation?
As with the current planning system, ministers will have the final say. However, they are also answerable to the Scottish Parliament and so form part of that democratic process.
But the Executive is also SNH's controlling body.
In a number of areas for which Parliament is responsible, we have procedures to ensure that responsible applicants are not in charge of making certain decisions and that no conflicts of interests result. However, at the end of the day, ministers have responsibility because they are democratically elected members who are answerable to Parliament.
Patrick Harvie has suggested that we might wish to report our concern that ambiguity remains over objectors' rights. Do you want us to press that proposal, Patrick, or are you content with the minister's response?
I am not arguing that removing Crown immunity is a bad idea or that it is not a significant improvement. In fact, such a move is very welcome. However, because factors such as relevance to national security, urgency and immunity from criminal prosecution remain, Crown planning applications will still have an advantage over objections that private planning applications do not have.
I seek members' views on whether we report Patrick Harvie's suggestion to Parliament.
It is reasonable to give issues such as relevance to national security special consideration in law and in administrative procedures, as long as that is not abused. As a result, the proposals in the bill are not unreasonable.
I will deal with Patrick Harvie's objection first. Patrick, do you want to push your concerns about objectors' rights to a vote?
Yes. I am keen for the committee to report that.
Members will be clear about the proposal that we are voting on. The proposal is, that our report should mention concerns about ambiguity in the bill over objectors' rights. Are members agreed?
No.
There will be a division.
For
The result of the division is: For 1, Against 6, Abstentions 2. The proposal is disagreed to.
It would help if I could ask the deputy minister another question on that point.
It would not really help, because we are trying to progress the matter. Otherwise, we will be here for ever. I suppose you could ask a rhetorical question, Patrick. If the minister then felt obliged to interrupt me later, she could do so at her peril.
I wonder how a minister with responsibility for planning would respond to being asked about what the problems would be for a planning authority if such constraints on enforcement existed for private planning applications. How would such difficulties be overcome in respect of Crown planning applications?
Even with what is being proposed, we can still enact an enforcement notice, which would ensure that the direction was placed on the planning register. If an individual should then become the owner, they would have to take on board the enforcement notice.
I want to respond to Donald Gorrie, who said that it makes no sense for the Government to prosecute the Government. That misses the absolutely fundamental point about how our legal system works. The Executive—the Government—is entirely separate from, and cannot exercise direct control over, the judiciary or the prosecution services. That important principle protects people in our country.
I also hope that Westminster's consideration of the issue would reflect the substance of what the committee has said. Our discussions will be recorded in the Official Report. The fact that such issues are being raised in the committee means that they are already part of the discussion. The question is whether we want formally to report the matter to Parliament as a particular matter that we want to highlight. I thank Stewart Stevenson for his comments.
No.
There will be a division.
For
The result of the division is: For 3, Against 5, Abstentions 1. The proposal is disagreed to.
On the point that Mary Scanlon made, I ask her whether she wants to formulate something to report or whether she is content that the matter has been taken care of.
If the MOD has any issues to raise, there are elected members down the road in Westminster who can raise them in the appropriate place and at the appropriate time.
Do members therefore agree that there is no need for the committee to report to Parliament on the Planning and Compulsory Purchase Bill?
I thank the minister for attending the meeting. The meeting will be suspended for two minutes.
Meeting suspended.
On resuming—