Regulatory Reform (Scotland) Bill: Stage 1
Good morning, ladies and gentlemen, and welcome to the 23rd meeting in 2013 of the Economy, Energy and Tourism Committee. I remind everyone to turn off—or at least turn to silent—all mobile phones and other electronic devices.
Before we start, I hope that members will indulge me in a little advertising on behalf of the committee. We now have a Twitter feed, whatever that might mean. Our address is @SP_Economy—which I am sure will be spelled correctly in the Official Report—so you can follow the excitement, thrills and spills of the committee every day, if you wish.
We have received apologies this morning from Dennis Robertson, for whom Joan McAlpine is attending as a substitute. However, Joan is running a little late; she has sent her apologies and will be here very shortly.
The first item on the agenda is continuation of our evidence taking for our stage 1 report on the Regulatory Reform (Scotland) Bill. I am pleased to say that we are joined this morning by Fergus Ewing, Minister for Energy, Enterprise and Tourism; and Derek Mackay, Minister for Local Government and Planning. They are joined by Scottish Government officials Stuart Foubister, divisional solicitor; John McNairney, chief planner; Sandra Reid, better regulation policy adviser; and David Palmer, head of marine planning. I welcome everyone and thank them for coming along.
Before we get into questions, ministers, do you wish to make any introductory remarks?
Thank you very much, convener. Good morning and happy Twittering. I welcome this opportunity to speak on the bill, as it will allow us to build on the letter that we sent last week.
By streamlining and making regulation more effective, the bill will protect our people and environment and make a modest contribution towards helping our businesses flourish and create jobs. Consistent, proportionate and effective regulation is essential to the Government’s purpose of increasing sustainable economic growth. That reflects what I am told when I visit businesses throughout the country and indeed the business community’s response to last year’s consultation on the options for better regulation. This Government has a record of delivering better regulation and I know from personal experience that that can make a significant difference to businesses throughout the country.
As Minister for Community Safety, I oversaw a review of fire safety regulations in the bed-and-breakfast sector of our tourism industry. The sector was unhappy about what it saw as over-the-top fire safety measures, and a working party that I chaired over a long period simplified requirements and reduced the average cost of compliance by more than 90 per cent while ensuring that high safety standards were maintained. That approach was welcomed and, as a result, I strongly believe that although regulation is necessary to protect the environment, consumers and people in business, our approach must also ensure that we apply the principles of better regulation: namely, regulation that is transparent, proportionate, consistent, accountable and appropriately targeted only when needed. The Regulatory Reform (Scotland) Bill aims to improve the application of regulations in practice across Scotland to support business and economic activity and deliver benefits to society.
My colleague Paul Wheelhouse has already given evidence on the bill’s environmental aspects to the Rural Affairs, Climate Change and Environment Committee. I am also aware that you and your colleagues have been taking evidence from a variety of organisations and regulators on the bill’s enterprise elements, on which I lead, including the enabling power to encourage or improve consistency in the exercise of regulatory functions; the duty to contribute to sustainable economic growth in regulatory activity and the related code of practice and amendments to requirements for certificates of compliance for mobile food business street trader licence applications. As you know, I have already signed a memorandum of understanding with Councillor Stephen Hagan of the Convention of Scottish Local Authorities on working together to develop future national standards.
We also recently consulted on the merits of primary authority partnerships, and we are now analysing the 42 largely supportive responses to that consultation. A code of practice working group has been set up to develop a draft Scottish regulators’ code of practice for consultation later in the year.
You may also be interested to know that, in July, the United Kingdom Government issued an updated regulators’ code and published a Deregulation Bill, which includes a duty to
“have regard to the desirability of promoting economic growth.”
Although that is relevant to businesses that operate across the UK, we in Scotland remain firmly focused on better regulation rather than deregulation. We are committed to a high level of stakeholder engagement and to responding to stakeholders’ views.
I will end by acknowledging the interest from MSPs and stakeholders in the duty to contribute to sustainable economic growth and, in concluding these short opening remarks, I make it clear that this duty does not state that sustainable economic growth must be foremost over other regulatory objectives or statutory duties and does not prioritise sustainable economic growth over other regulatory objectives or statutory duties. Regulators need to determine an appropriate balance and be accountable for that. In their responses to consultations and to the Parliament’s committees, regulators have signalled that they already act in that way and I welcome that. The bill supports that existing good practice and will extend it across Scotland as a whole.
Before we take questions, I am sure that my colleague Derek Mackay will wish to add a few opening remarks.
We are very fortunate in having a brace of ministers this morning. Mr Mackay, would you like to say something?
Yes, please, convener.
I, too, thank the committee for the opportunity to discuss the Regulatory Reform (Scotland) Bill. The planning reform next steps programme is making progress by encouraging improvements to the planning service to ensure that it fully supports economic recovery through promoting the plan-led system, driving improved performance, focusing on delivery and simplifying and streamlining the system. We have also consulted on a revised Scottish planning policy that provides high-level messages on ministers’ planning expectations, including a high-performing, high-standard function that focuses on achieving outcomes that make a difference to people rather than process alone in playing a key role in facilitating economic recovery and sustainable economic growth.
Our key aim is to make the SPP much clearer on how planning can support the delivery of jobs and growth. We propose, first, that significant weight be attached to the economic benefits as a material consideration in the planning process, particularly the creation of jobs and, secondly, that development plans must be deliverable and informed by sound economic evidence, particularly local economic strategies.
As you are aware, I am committed to improving the performance of the planning service in Scotland. I have discussed with staff in every authority in Scotland my aspirations for a high-performing service. I understand that there has been a significant stakeholder interest in section 41 of the bill, which relates to charges and fees for planning authorities’ functions. With approval from the Scottish Parliament, planning fees were increased by approximately 20 per cent on 6 April 2013, and I consider that that increase will strengthen planning authorities’ resources and capacity to deliver a high-performing service while maintaining a supportive business environment that supports economic growth. Scottish ministers maintain that any fee increases must be inextricably linked to performance if we move towards full cost recovery and I am dependent on local authorities to improve their performance and for them to provide the justification to do so. I will not make any knee-jerk reaction to reduce any authority’s fees based on one period of poor performance, and the process will include an opportunity for authorities to improve on areas identified through assessment before I seek to use any new provisions.
A high-level group on planning performance has been formed. The group, which I co-chair with Councillor Stephen Hagan, COSLA’s spokesperson for development, economy and sustainability, and which includes key representatives from the Society of Local Authority Chief Executives and Senior Managers, Heads of Planning Scotland and other key agencies, has identified and agreed a set of performance markers that reflect key areas of essential good performance and service quality across the planning system. Those key markers are in the main not new but are drawn from the existing planning performance framework that we developed with local government and other stakeholder groups when it was introduced and form the basis of the assessment that will be used to consider whether to vary any individual planning authority's fees. The high-level group is taking forward detailed practical arrangements for use of section 41 provisions. I am not indicating that COSLA supports the section, but I will continue to work in partnership on that and all other matters relating to the bill.
Thank you, minister. As we need to cover quite a lot of territory in the next little while, I ask members to keep their questions short and to the point, and it would be very helpful if we had responses along the same lines. It will probably be self-evident which minister the questions are directed at, but it will help if members indicate to whom they are asking their question to ensure that there is no confusion.
I will start with section 4, because the evidence that we took suggested that the duty on sustainable economic growth is potentially the most difficult and controversial part of the bill. In your introductory remarks, Mr Ewing, you talked about the Government’s priority of promoting sustainable economic growth, but can you tell us what sustainable economic growth is?
I know that there has been a particular interest in the definition of sustainable economic growth and in my most recent letter to you, dated 5 September, I provided it. Given that I am not a parliamentary draftsman and given that anything a minister says is his bond, I will just read from that letter rather than indulge in extemporary contributions.
The Scottish Government defines sustainable economic growth as:
“building a dynamic and growing economy that will provide prosperity and opportunities for all, while ensuring that future generations can enjoy a better quality of life too.”
Indeed, that definition can be viewed on the Scottish Government’s website in the answer that John Swinney gave to a parliamentary question on 20 November 2012. That indicates that, although there is always interest in this area, the Scottish Government’s response has been stated clearly, frequently and with absolute consistency. I hope that we have provided absolute clarity in that regard.
09:45
Thank you for that. We have been told in evidence—and we have confirmed this ourselves—that the term “sustainable economic growth” has not been previously defined in legislation. Will you be putting the definition that you have just provided in the bill?
The question whether definitions should be put in bills is one on which we have to take legal advice, so that is a matter for legal advice. We have provided a clear definition of sustainable economic growth. If any of the officials wants to provide additional information, I would be happy for them to do so, but it seems to us that, given that we have provided a very clear—albeit general—definition, that should suffice. To some extent, we are all anxious to get on with delivering economic growth rather than talking about defining economic growth.
I think that the point is—we have heard this in evidence—that if there is no definition in the bill, inevitably it will come down to the courts to define the term, and we will end up in litigation. We have heard quite a lot of evidence that says that, because of the impact that the bill will have on a number of regulators, and given that, as you will be aware, when it comes to development and planning, there might be very large sums at stake, it is very likely that stakeholders—either developers or objectors—will end up in the courts to challenge particular decisions based on this provision being put in the bill. Therefore, the courts will decide. Surely it is preferable for Parliament to decide on a definition and to put that in the bill, rather than have the courts decide at a later date.
There is always the risk of court action on all sorts of things. It is not really possible to prevent that, no matter how a bill is drafted. It would be nice, particularly for ministers, if there were a way in which we could avoid some of the litigation in which we are involved but, sadly, that is beyond our ken. Equally, it is important that people have the right to take matters to court. That is an element of civilised society.
I am sorry, but you are not seriously telling me that you think that it is preferable for the court rather than Parliament to decide these matters.
I am just coming on to answer your question. We do not think that there is a compelling case for including a definition in the bill. Of course, we are always happy to consider such matters further, and we can have a little bit of legal advice and contribution, if you want, in a moment. It would be imprudent for me to say anything other than that these are matters on which we need to reflect very carefully, for the reasons that you have described.
However, our current view is that there is no compelling case for including a definition in the bill. I should point out that the duty will be underpinned by the code of practice. To address stakeholder concerns about the matter, a definition will be included in the code. The definition will be the one that we have provided very clearly, and over a long period, in response to a series of questions that have been put in writing and verbally.
Of course, we will be happy to consider the matter carefully once again if the committee feels extremely strongly about it and come back to you, but we have reached the view that there is no compelling case for including a definition in the bill. That is our current view and the advice that we have had, after quite a lot of consideration of the issue over a long period, and other bills as well. I do not know whether there is any litigation that you can point to over the matter. Sustainable economic growth has been our primary purpose since the previous Administration was formed.
Yes, but the term “sustainable economic growth” has not appeared in a bill that has been passed by this Parliament so, clearly, there would be no litigation around that, because it has not been in the law.
We will tak tent on that and look at it carefully again because, if that is the case, that would be a reasonable point to make. Our current advice is that there is no compelling case to include the definition in the bill, but we have provided a definition. Indeed, that definition, having been stated very clearly in these committee proceedings, will be available for any court to look at in relation to the interpretation of bills. As I understand it, courts are allowed to do that, although I am now trespassing into the area of legal advice, which officials may want to urge me not to do further.
Stuart Foubister (Scottish Government)
If it helps, I think it highly unlikely that any legal disputes over section 4 would descend to a definition of sustainable economic growth. I can see the scope for dispute as to what the duty requires a particular regulator to do in a particular circumstance, but I do not think that that is the same as saying that there is a dispute as to what “sustainable economic growth” means. As the minister has pointed out, we have provided a definition in the letter that is likely to feed through into the code of practice or the guidance. If you look at the language that is used, you will see that it is not of the nature that one would normally see in a statute. It is not that kind of legal definition.
I welcome the fact that the minister is thinking about excluding planning functions from the duty to contribute to sustainable economic growth.
We are being asked by the Government to pass what appears to me and to others to be a convoluted and caveated economic duty—namely, a duty for regulators to promote sustainable economic growth, except in cases where that affects their regulatory functions. We have taken a lot of evidence from bodies such as Scottish Natural Heritage, which claims that it will make no difference whatever to the way in which it works, but we have also heard from 12 local authorities that are against the proposal. The unions are opposed to it, and the regulatory review group itself did not suggest or fully endorse it.
Given that we have heard a lot of conflicting evidence and a lot of evidence that does not support the inclusion of the duty, would it not be better to drop the section entirely and allow the successful, non-legislative approaches to continue to deliver consistency?
No. I do not think that that is a suggestion that is well founded, and I am afraid that I respectfully disagree with the characterisation of the position as set out by Alison Johnstone. In all Scottish regulators, we are determined to promote a broad and deep alignment with the Government’s primary purpose of delivering sustainable economic growth. We accept that regulators are making progress and that they balance existing duties, but the statutory economic duty, alongside the code of practice, will—we believe—deliver greater transparency towards the Government’s purpose of achieving sustainable economic growth.
The duty, as I have already made clear, does not prioritise sustainable economic growth over other regulatory objectives. Some statutes prioritise specific duties. For example, the Sandford principle sets out that the first duty set out in relation to national parks should be given preference, in certain respects, over the other duties. That is a possible course of action, but we have not done that, because we take the view that we should not prioritise economic growth as the consideration to which most weight must be attached. On the contrary, we have said that it must be something to which regulators must have regard, and I think that that is the correct approach.
It would be perverse were that not the correct approach, given that delivering sustainable economic growth is the primary purpose of this Government. I could invert the proposition to Alison Johnstone and say that it would surely be perverse if there were no duty whatever to have regard to what is the primary purpose of this Government. Of course regulators should have regard to it. Therefore, the duty is sensible and necessary. I do not think that how Alison Johnstone has characterised the responses to the bill—she has suggested that this does not receive substantial and reasonable support from wide quarters—is correct.
I want to stress that the approach that I have taken—and I hope that this will not be disputed—has been to have lengthy, detailed and constructive discussions with Stephen Hagan and his staff in COSLA over a long period. We have been very keen to make sure that, in relation to the economic duty, we work extremely closely with COSLA and seek to deliver the bill in a way that is broadly supported by COSLA. I believe that we have achieved a great deal thus far, working with COSLA in that regard. I am proud of the fact that we have had that engagement, and I think that the proposed duty will make a positive contribution to the achievement of sustainable economic growth in this country.
Alison Johnstone mentioned the exclusion of planning from the economic growth duty. The reason why we have taken that approach is that we think that the application of the bill to planning authorities is not the appropriate way to deal with matters, because sustainable economic growth is already a consideration that is enshrined in planning law. I am sure that Mr Mackay will be willing, if he is permitted so to do, to set out our thinking on how the sustainable economic growth imperative will be taken forward in relation to planning law. It will be taken forward in planning law in practice in another way, and not in the bill. We are not dropping anything; we are just doing it in a different way.
I do not know whether Mr Mackay might want to answer that part of Alison Johnstone’s question.
I fully expected questions on this subject. As Mr Ewing has indicated, it would be inappropriate for the duty to apply to our planning functions, but the pursuit of sustainable economic growth will continue in planning policy and national planning framework 3. Indeed, it is reinforced in the emerging policies that I continue to actively consult on.
Within those policies, we propose that economic impact and economic benefits should have greater weighting as a consideration in the planning system. That is an appropriate policy place to have that discussion; we should not necessarily have it in the context of a duty that might convolute the appeals process as it relates to planning. That said, sustainable economic growth or economic impact does not necessarily override all other considerations in the planning system. The planning system is about having a balance and an understanding of a range of factors that lead to a conclusion on whether to consent. It is certainly a policy approach as opposed to the legal approach that the bill might have led to. That is why we have been enthusiastic to clarify the point.
Thank you. That is helpful. Unfortunately, I think that it is fair to say that the committee spent a fair amount of time discussing examples that might have arisen were the duty to apply to planning. The clarification is welcome now.
When Councillor Cook from COSLA gave evidence, he said:
“the duty to promote economic growth cuts across local democratic accountability.”
He also said, in relation to the question that he was asked about whether COSLA regarded the national duty as ideal:
“our response ... is simply no.”—[Official Report, Economy, Energy and Tourism Committee, 5 June 2013; c 2953-4.]
Although we are being advised that the economic duty will not be prioritised above others, it is very subjective. Deciding which level of importance to give to an economic duty is a very subjective decision. We were given an example of a shop that is selling bootleg alcohol and, because of that, is making money and growing its business. Could that be a defence against regulatory action?
10:00
I am not going to start to talk about bootleg alcohol, especially so early in the morning.
To take your question seriously, we have had very positive discussions with COSLA. We have had very good working and several meetings with COSLA over a long period. A lot of work has been carried out. A code of practice will be developed by regulators and stakeholders. That will be consulted on prior to introduction. I think that that will provide a lot of practical assistance to regulators and stakeholders, and I hope that it will address some of the concerns that members have expressed in this committee and previously. A short-life working group comprising business representatives and regulators including the Scottish Environment Protection Agency, SNH and COSLA has been established to develop the code of practice.
In practice, we spend a lot of time—and rightly so—engaging with local authorities. I engage with Moray Council on the Buckie shipyard which, sadly, went into administration a week ago yesterday. I engage with Stirling Council in relation to homecoming issues. I engage with Aberdeen City Council and Aberdeenshire Council about the oil and gas industries. Such engagement is very important to me. I could give you many other examples—I engage with the island councils in relation to renewable energy. That is very important. We want to work in partnership with local government, and we do. That is extremely important to us. I think that the bill, working together with the benefits of the code of practice and all the engagement that there has been, will make a significant contribution to creating more jobs and businesses. I hope that that is something that the Green Party would welcome in Scotland.
We had a meeting with a senior environmental trading standards officer who said that, in working with the owner of a burger van or a baker with a mouse infestation, those people’s livelihoods are at the front of officers’ minds and they constantly help them to get back to work as quickly as possible. Local authorities fully understood the need to contribute to the working world and the economy. He was resolute in his belief that there is no need for national legislation.
On sustainable economic growth, you recognise that sustainable development is a well-understood and established concept. The Law Society of Scotland could not have been clearer about its concern that the bill is a lawyers’ charter. I do not understand why we are going down the road of foisting legal uncertainty about the concept of sustainable economic growth on regulators.
I respectfully disagree with almost all Alison Johnstone’s assertions. The bill is not “foisting legal uncertainty” on anyone; I refer to comments by my officials earlier, in that regard. The new duty is about providing clarity on the Government’s purpose and demonstrating the obvious—namely, that the Scottish Government and regulators in Scotland value economic growth and protection of the environment. Those need not be mutually exclusive; we can, and should, aspire to deliver mutually supportive outcomes wherever possible.
We have sought to cover all those issues today, and in extensive correspondence. We will look specifically at the issue that the convener raised about the need for a definition. I can see that we have not satisfied all the committee’s members, so I undertake to return before stage 2 with a further letter setting out our views so that we can, I hope, close this argument.
Good morning, minister. On the one hand, you said that you will look at sustainable economic growth and sustainable development. I am pleased about that and I thank you for saying that. However, some of your other responses almost disagree with that. I want to reassure myself that you are really saying that you will look at the matter again.
What I said in response to the first line of questioning from the convener is that I will come back to the committee with a letter prior to stage 2 on the specific question whether there should be incorporated in the bill a definition of sustainable economic growth. That is fairly clear.
Foot-and-mouth disease and horsemeat pollution in our meat affect our economy, tourism and a host of things, including licensing. How will the bill protect the community from that type of activity?
I must admit that I have not specifically considered foot-and-mouth disease in relation to the bill. My recollection is that those matters are considered primarily by appropriate veterinarian and health experts upon whose advice we tend to rely.
My point is that those issues affect our economy and tourism. The bill is looking at sustainable economic growth and sustainable development. Surely the bill must have a role in protecting industry from that type of activity.
What sort of activity?
I mean, for example, horsemeat contamination of meat.
I am happy to look at that issue and come back to Hanzala Malik on whether the matter has implications for the bill. However, my initial view is that that is unlikely.
Good morning, ministers and teams. I have never been sure why we went up this blind alley. I have read several local economic development plans and I have yet to see bias one way or t’other.
You and your advisers will have read many more plans than I have. Will you advise me where the economy has superseded sustainable development in any of the plans? In fact, are they not indivisible and do they not work alongside each other?
Mr Brodie’s point is correct; it is not a choice between sustainable economic growth and sustainable development. They are actually compatible, in keeping with each other and in harmony. Sustainable development has a very well-established definition, simply because of its duration and its timing, and it is a bit more lengthy than the definition that is provided on sustainable economic growth. The parliamentary process is assisting, and I am sure that we can all regurgitate words to mean the same thing. However, there is no conflict.
The debate around whether we are, for example, diluting our sustainability agenda is false. That is at the heart of Government policy and our definition. We can say as many words as we like to mean the same thing but, essentially, the definition is provided by the cabinet secretary, for the Government. Sustainable development as embodied, for example, in planning documents has been established for longer. Therefore, you could describe it as being more widely understood. However, there has never been any serious challenge to the Government’s understanding of sustainable economic growth as an overarching purpose or as something to achieve.
On Alison Johnstone’s point, for any planning consideration we have to consider a range of factors and then come to a conclusion. Not least in our minds is the economic impact, what happens to a community and what the benefit of any application is. I think that the debate about definition is something of a distraction from the emphasis.
Thank you.
I will take a very brief follow-up from Alison Johnstone.
Do you consider, for example, the development of Donald Trump’s golf course at Menie, on a site of special scientific interest, to be a clear case of economic considerations outweighing environmental considerations?
It would be completely inappropriate for me to comment on that.
Will the bill stop such situations occurring in the future? Will it ensure that such consideration is given full weight?
Let me give an assurance in another way. Even in the emerging planning policy as proposed in SPP, sustainable development remains at the heart of planning policy. However, again, the clarification that we have given to the committee is that the duty will not cover the planning function. In all such decisions, there is a balance to be struck, and sustainability remains an important consideration.
Thank you. We entirely understand that you cannot comment on a particular planning application—current or historical—and that it would be inappropriate to do so.
Before we move on from this topic, I ask for clarity on one other point. Will the new duty also apply to licensing boards?
No, it will not. Licensing boards are not among the bodies that are referred to in the relevant schedule.
Okay. Thank you for clarifying that. We need to move on. I bring in Margaret McDougall on planning fees.
Thank you. Good morning, ministers and officials.
In response to the Rural Affairs, Climate Change and Environment Committee report, the minister stated that the costs of processing planning applications are not known. Given that, will the minister provide an explanation of the decision to review the planning system without first establishing the base for the applications?
Margaret McDougall’s question is a good one. We have used various evidence sources over the piece, including information from Audit Scotland that suggests that there is a gap of some £20 million between the cost of delivering the planning service and income from fees. We were working with that estimate when we considered the planning fee increase that Parliament then considered.
Margaret McDougall will be well aware that the Scottish Government does not provide the planning service at local level and that local authorities establish the figures and costs. That is why we are working with Heads of Planning Scotland to get a fuller understanding of the cost of a planning application and a decision. Of course, costs vary from application to application and authority to authority. The situation is very complex, but we rely on Heads of Planning Scotland to lead that work and to assist us in moving towards full cost recovery. I can go further if Margaret McDougall wants me to do so. That is the evidence and information that we are asking for; previous assumptions were based on information that was provided by Audit Scotland.
So, we do not yet know what the costs of planning applications are and what the cost to councils for processing those will be.
I think that what I said was that the cost depends on what the application is and where it is made. Different costs are levied across Scotland, because the planning system is largely, in the first instance, delivered by local authorities. They have not established the full cost of each application in order for us to be able to consider that. Of course there are different levels in the value of applications and, therefore, in fees.
A bit more work needs to be done on the specifics in order to move to full cost recovery. That has to be done in a way that is justifiable. I cannot, for example, ask the private sector to pay over and above the genuine cost of the application. We need to understand that, to probe into it and—to use that terrible term—to drill into the figures and the cases to get a fuller understanding of what every application might cost, in order that we can establish that principle.
We know the global cost of the planning service and the global fees-income figure. That took Audit Scotland to the conclusion that there is a gap of some £20 million. We have plugged some of that gap with the 20 per cent increase to the planning fee this financial year, which we estimate will generate between £4 million and £5 million. That is based on current levels of applications, which, of course, may vary in the light of economic recovery.
Will that go back to local authorities—
Yes. The local authorities are working with us in the high-level group. We are working in partnership with Heads of Planning Scotland to establish the cost of planning applications and to take that work forward as best we can.
We have heard lots of evidence on the views of planners, how the bill will affect local authorities and how we can measure the performance of planning authorities. What is being done to ensure that we are measuring planning authorities as best we can? It seems that there is no clear evidence of what is a well-performing planning authority and what is not such a good one. We heard that the likes of the City of Edinburgh Council can be very different from rural planning authorities, in respect of the complexities of the planning applications that they receive. How do you assess the performance of a planning authority?
That is a very good question. I hope that some such information has been provided to the committee. If not, I will make sure that you receive it.
There are markers of good performance that are based on the planning performance framework. Those pose a number of questions on timescales, offering of processing agreements, pre-application consultation for major applications and whether a plan is less than five years old, which is a statutory requirement. There is a range of indicators. The situation is not black and white; it is not that there are good authorities and bad authorities. There is a range of factors, some of which, of course, would be outwith the planning authorities’ control.
You can probe particular questions. Some of them will be yes or no questions on whether the authorities do something or not. Some of the questions are about indicators and average timescales for how long it takes for a planning application to go through the system. To be frank I think, as many members do, that it takes too long in many areas, and that that is unacceptable and must be challenged.
We can assess the general performance of a planning authority across a range of indicators. We have been doing so through the performance framework, which was designed in partnership with Heads of Planning Scotland. We are now formalising that through the high-level group, which works in partnership with Heads of Planning Scotland, COSLA, SOLACE and others to make sure that we get it right.
Performance can be considered in a number of different ways. The sanction will give us time to probe that and to assist planning authorities to improve. It is not good enough just to give an improvement agenda and nice reports from the minister, and then to cross my fingers, hope for the best and hope that things will get better. That will not be acceptable if we are making a commitment to link performance inextricably with fees. A 20 per cent fee increase was a big ask. It will get more resources into the system, but we have to be serious about performance and I believe that that mechanism will be a driver to improvement. COSLA does not support that. If I were a council leader—which I was—I would probably not like the mechanism, but I know that I would also ensure that I was driving up performance in the planning system. Every other part of the corporate council would take the same approach to such potential lost revenue, so it is a very powerful incentive.
10:15
Margaret McDougall rightly asked me about views. I would not expect local authorities to support the measure, and COSLA is clear that it does not support it, but we continue to work in partnership on how to establish good performance. By definition, we can then establish areas in which development and improvement need to take place. I know that the committee has heard a great deal of evidence. I do not leave it to officials to tell me what is happening in the planning system, so I have visited every planning authority in the country, some by grouping them together and some by visiting the individual planning authority. Every planner in this country who accepted the invitation has had the opportunity to hear the Scottish Government’s views on planning and to question me personally. I am well sighted on the views of planners throughout the country.
I have also had a great deal of engagement on that with stakeholders and COSLA, including visiting—which was a pleasure, of course—the leaders meeting, in front of 32 council leaders and their chief executives, to discuss planning. That meeting has a high level of political importance. If we are to establish the link between fees and performance, which a good number of respondents and witnesses have said is a good thing, we need a mechanism to do it. I suggest that what we propose should be the mechanism.
Will there be a definition of satisfactory performance in the bill?
No. That would not be appropriate—it would be uncommon to have such detailed information in the text of a bill. It might be more appropriate to include a definition in guidance or in another vehicle—perhaps a statutory instrument—but one would not necessarily legislate for performance. In the same way, the Accounts Commission or Audit Scotland are created by statute, but the legislation does not include all the indicators that they would use; those would be designed and constructed differently.
I propose the same in this context, but I will not work up a definition in isolation, which is why I have engaged with experts, planners, local authorities and other stakeholders to ensure that we get it right. There will be a proper collaborative process. It would not be appropriate to put a definition in the bill.
You mentioned sanctions. All our witnesses apart from one have said that they do not think that the application of sanctions on planning authorities would be helpful, because it would reduce the funds coming into their departments and place added pressures on them. Will you continue with the plan to place sanctions on local authorities that are deemed to be underperforming?
The thrust of the work by the Government—and by me, as the minister—has been positive and has focused on encouragement, incentivisation, new investment, support and picking up best practice from across these islands. However, that is not good enough if it does not achieve the right performance outcomes. I am, therefore, serious about the mechanism, and about increasing planning fees. In order to be able to justify any future increase, I must have evidence of improved performance. We have to be serious about that in the planning system, so we propose to continue with the mechanism, which I believe will be an incentive.
A council leader, a director of finance or a chief executive with an underperforming planning system might not take as much interest as they should. That might be an unfair comment, but if there was a potential loss of income generation for their authority, it would suddenly become a financial matter as well as a performance matter. That type of corporate approach is one of the things that we need to improve in order to achieve a better planning system.
All too often, I hear from the planning system that a problem was not the fault of the planner or the planning service—it might have been legal obligations, the roads department or a response from the education department. I want all parts of the local authority to take planning and its functions seriously, and the mechanism will be an incentive to move in that direction.
The mechanism will improve behaviour and outcomes, and there will be no loss of income because planning authorities will step up to the plate. I fundamentally believe that—as do many of the stakeholders with whom I have engaged. However, if I was a witness coming to this committee with a planning application in the system, I am not so sure that I would be heralding my support for such a penalty mechanism against the very planners who might make the decision on my application. I am therefore not surprised that some people have been quite quiet in their support for the mechanism, although I detect much support for it throughout the country.
Given the legal implications, as planning authorities sit outside and are separate from local authorities, how would the mechanism apply?
That is correct. Planning decisions are quasi-judicial in terms of the merits of the case and the functions therein. Much of planning policy relates to the policy corporate, which is perfectly relevant. When we go beyond assessments and the other policy impacts that have sometimes held planning back, we can see that it is not just about the planning service. You are absolutely correct regarding individual planning decisions and consideration of them, but planning is very much part of the local authority, not least because of the importance of economic development to a council’s functions. It would not affect in any negative way the legal imperative.
Some people have asked, “What if authorities simply rush planning decisions so that they do not hit the trigger on timescales?” As I have said this morning, there is more to planning than the timescale—although it is important—and I have already produced markers of good performance in a planning authority. A lot of applicants want certainty, engagement and a good understanding of the process. The mechanism will not contaminate the purity of the planning system in any way; rather, it will act as an incentive to achieve better performance across the board.
Given that you expect that the increased fees will increase the income of local authorities, will that mean that grant-aided funding to local authorities will be reduced?
There is no correlation between increased planning fees and the general grant settlement to local authorities.
Before I bring in other members, I want to clarify something that you said earlier in relation to COSLA. You will have seen the letter—which was sent to me and copied to you—from your good friend Councillor Stephen Hagan, in which he, on COSLA’s behalf, states:
“Our view continues to be that it is fundamentally too much Ministerial interference in the operations of a specific council service”.
I presume that you would agree that local authorities that are democratically elected by their local population are therefore accountable through the ballot box.
Absolutely.
So why do you not just leave the matter to local authorities and their local electorates to determine? If a local council administration is performing badly on planning or something else, it is surely up to the local population to vote them out of office.
Surely that is not a serious proposition from a Conservative: that if a council is performing badly, I should leave it to it—especially in an area in which the Scottish Government has clear responsibility, and given that every planning application in the country could be determined by the minister.
I have taken a different approach from that which has been taken south of the border. Just for information, if a planning authority south of the border is deemed to be performing poorly, the minister has the power to assume direct control over it. That is a far more centralising agenda than the one that I am trying to deploy in Scotland, which seeks to encourage localism, decentralisation and local decision making and—absolutely—to improve performance.
If the Scottish Government is ultimately responsible for the fee, I have, in connecting fees to performance, to be serious about performance. I know that COSLA objects in principle to that section of the bill. It would, wouldn’t it? I fully anticipated that, but there is a great deal of on-going positive partnership work with COSLA on that agenda, and the objections will not stymie that progress.
I was trying to understand whether or not you believe in local accountability. I do not think that COSLA would see the change as a decentralising move in any shape or form.
The comparison that I was making is that it beats the option south of the border, where the planning minister or his agents could take control over every planning decision in an authority’s area, thereby removing all control and decisions from local elected members. I am not proposing to do that; I am proposing an incentive to improve performance in a way that I, as a former council leader, know will work.
I welcome the fact that COSLA is working with the Government. Perhaps the robust evidence that we received from the COSLA representative did not reflect what was intended.
On that point, as the convener will know, the evidence from COSLA states:
“Whilst we are not against national standards per se, we are against the presumption that such national standards can be specified by a national government without clear mechanisms for consultation”.
However, that is apparently what is happening. Given the diversity of the 32 local authorities, will you, before applying the fees—which some people seem to view as negative—advise, in working with COSLA, on other approaches that will be used to improve performance, such as transferring best practice between local authorities?
Of course, we would rather not have to impose fees. We would rather have the 34 planning authorities—32 councils and the two national park authorities—performing so well that we never even have to consider doing so.
Before we come anywhere close to bringing to Parliament a statutory instrument, which would be required to enable us to use the power, there will, of course, be a period of probing to understand the range of factors—some of which might be outwith the planning authorities’ control—and to allow an opportunity for improvement. Such an approach would be natural justice as well as good practice, and I would heartily support it. We will work up that mechanism in partnership with the high-level group, while acknowledging COSLA’s opposition.
The markers of a well-performing planning authority exist, and the mechanism can be delivered in partnership. However, we would naturally want to give planning authorities the opportunity to improve so that we do not need to use the proposed mechanism. That is the type of incentivised outcome that we all want to achieve.
The outcomes can be focused on a specific thing that the planning authority has not done. For example, this Parliament has said that, by law—I believe that it is by law, as it would have been in the Planning etc (Scotland) Act 2006—development plans should be less than five years old, but in fact only 59 per cent of plans are less than five years old. We need delivery, and to get that, we need to get serious. The mechanism is a driver for improvement, and will focus minds when we are discussing the need for improvement. That removes the need for the Government to centralise an entire planning service.
Do you intend, once you have determined the anticipated outcomes and performance markers, to publish those so that they are open and transparent, and so that we can discern the performance of each local authority?
Members should have the draft version of those in their hands right now. If you do not, you will soon. If the high-level working group makes any amendments, I am happy to share those, because we should have a transparent planning system.
I have always believed that planning has a lot of implications for and impact on our environment.
Cost is a factor, time is a factor, and delivering to industry is a major factor, because when industry is waiting for planning, it is burning money. I have seen companies walk away simply because they have not been able to get planning in time; that is a very serious issue in a lot of places. To encourage development, and to encourage construction in particular, planning needs to be on the ball in terms of delivery.
Quality of service and delivery on time are essential. I am not terribly convinced about costings and how we relate those to planning applications. I believe that smaller planning applications sometimes merit a smaller fee than larger ones. That said, delivery on time is very important; it is absolutely crucial, regardless of what type of planning is involved. I see councils up and down Scotland putting the smaller applications on the back burner, saying that they are not terribly important right now and that they will deal with them when they get the chance. That is the wrong attitude. Applications should be online, and when they are submitted they should be activated immediately. There should then be a time bar—a period within which it should be dealt with, whether for or against. That is important, irrespective of all the other elements that are part and parcel of the whole process.
People need to be confident that, if they put in an application, they will get a response within a certain period. I know that there are limits of 21 days—for activating the planning process and in relation to receiving applications—but I have known people who have waited for six months or more, and that is just unacceptable. The point that I am trying to make is that the bill needs to address that.
10:30
That is a little bit wide of the provisions of the bill, but I will let the minister answer.
I understand that ministers are consulting COSLA and that they are trying to work this through. The important point is that the bill really needs to address everybody’s aspirations. Everyone should be treated equally when it comes to planning applications.
Mr Malik’s point about performance is at the heart of what the Government is trying to achieve, and it is certainly relevant in a number of ways. The frustration is that, just as Government needs to do certain things to ensure that we get a proper planning system—as Mr Malik said—so do all members of the Parliament. The last time that I was asked about planning timescales in Parliament, it happened to be Mr Johnstone from the Conservatives who asked why it takes 77 weeks for certain applications to go through the system.
It is about people, leadership and culture, but it is about process as well. Where Government has got in the way of process or has created a bureaucracy, we are trying to take that out through streamlining and simplification. All the goodwill and partnership working in the world might not realise the kind of high-quality, well-performing planning system that Mr Malik wants. That is exactly why I think that that mechanism must be there as a driver to achieve the things that he spoke about.
On fees, I do not propose that smaller applications should subsidise larger ones. Of course, fees have to be proportionate, and there is a scaled fee system at the moment. I do not propose one standard fee for everything. A good system of permitted development, pre-application consultation and elected member engagement, as well as confidence in the system at the outset and a bit of certainty, are all key ingredients of a high-quality well-performing planning system. They are in the Government’s planning action plan, and that is why section 41 is so important for achieving that plan and giving it real impetus.
We will do the rest of the work anyway. I cannot guarantee success, but we will try. However, I can say that if there is failure, we will be more empowered to tackle it than we are right now, when all we can do is simply hold back planning fee increases. That does not feel particularly healthy, does it? It does not feel fair that the planning fee across the whole country is held back because it is perceived that some planning authorities are not performing or that the system is too variable. The issues go hand in hand: improved performance with increased fees, moving towards full cost recovery.
Some would argue, as I would, that planning is a public service, but there is an aspiration to move towards full cost recovery so that we can genuinely say that people are getting what they pay for and so that the private sector in particular is happy with what it gets when it pays for it. There might not always be consent—the answer might not always be yes—but people must have confidence in the system and the process. I do not think that that is unreasonable at all.
You mentioned sanctions. You said that, once you have tried everything with an underperforming planning authority, including giving it support, you will then put sanctions on the local authority. In effect, you will fine them. As you said in an earlier answer, the local authority would then have to try to sort out its planning department, basically by putting in more resources and support. Therefore, that hard-pressed local authority would have to find the resources—resources that it does not have—which means that it would have to take resources away from some other service to put them into planning to get it right.
You have completely misunderstood the concept, the mechanism and the fee. This is a quid pro quo for increasing planning fees by some 20 per cent in this financial year—the highest amount since the Parliament was created. We need to bear in mind the cost to all applicants.
The quid pro quo has to be improved performance. It is not fair that a planning authority should enjoy the increase in planning fees but do nothing to improve its performance. That has held back full cost recovery in terms of planning fees. We are not talking about a fine; we are making the link between fees and performance. The crucial question at the heart of your point is that of the planning authority being given a chance to explain and improve. I am convinced that, with that incentive, a planning authority that has not delivered a development plan, improved timescales or engaged in pre-application consultation would improve. These are not necessarily massively costly investments. It is about having the political will to get those things done and it might not require the investment that you suggest.
I also pointed out that timescales are not the only game in town when it comes to performance, but that it takes too long to get too many planning applications through the system. We moved from the arbitrary timescales for minor and major applications of two months and four months to monitoring average timescales partly so that we could get a fuller picture of what is happening in each planning authority.
Holding back fees will not be seen as a fine; it will be seen as an incentive and a driver for improvement. That is the context in which we have been able to increase planning fees, but if we are to increase them further there must be improved performance. Authorities that are performing well should no longer be held back by those that are not. My aspiration is to get 34 out of 34 planning authorities at that level, with greater consistency in delivery, so that we have the kind of planning system across the country to which we all surely aspire.
I absolutely support what my ministerial colleague has said. We must always bear in mind the huge significance that an efficient and effective planning system has for economic development and growth. If we have an effective, swift, fair and efficient planning system that deals with applications in a way that is seen as appropriate and fair by objectors and applicants, after the decision has been taken that developments should go ahead, we will create jobs and business and we will see people getting jobs and opportunities throughout the country.
We must bear it in mind that the link between planning and economic development and growth is umbilical. We cannot consider arcane issues in isolation from our overriding objective of helping people to get jobs, helping business to grow and securing investment for this country—most especially for the young people who wake up in the morning thinking that nobody values them and their contribution. That is important in itself, but it is hugely important for the economy of Scotland. That is why I am delighted that Derek Mackay has given such leadership in this area.
I will continue on that theme. Do you feel that, in the present climate when we are seeing a tentative economic recovery, a move towards full cost recovery, even if that was a worthy aspiration, that was too quick would risk jobs, the delivery of affordable homes and the prosperity that we are beginning to see emerge and come back into the economy?
Mr MacKenzie almost threw me there when he asked whether the planning system was moving too quickly, and then I realised that his question was about full cost recovery. I suppose that civil servants would describe the decision to increase the fee by 20 per cent as bold and brave, considering when it was taken, but it was engineered to try to get that partnership arrangement with local government around delivery on the ground and improved performance. Resourcing is an issue in all that, but the context is quite challenging.
When stakeholders raise planning issues with me, they do not often raise the planning fee. In fact, the costs of appraisals and assessments sometimes dwarf the planning fee. Such costs can run into tens and hundreds of thousands of pounds, so there is an issue there about people being more reasonable and proportionate when it comes to the assessments that are required. Sometimes good practice means having the relevant information to take all factors into account.
The cost of the planning fee itself is not usually what causes a problem for applications—not for the larger applications of the kind that generate an economic impact of scale. There have been previous consultations on the matter. The first consultation, some years ago, was on trying to link the fee to the individual application. It was suggested that if applicants were unhappy they could get 50 per cent of the fee back, but that suggestion did not find support and was dismissed. Then there was a consultation about going to full cost recovery. That would have meant a substantial increase beyond a level that I could have defended in times of recession and financial pressure, and I could not justify it because of the lack of improved performance.
However, with the arrangement and action plan that we have, 20 per cent is justifiable. Future increases are justifiable if we get improved performance, because the private sector and other applicants have said that they are content with increased planning fees so long as they get improved performance. I do not think that that is unreasonable.
The increase will be set in the context of the planning fee as a bigger sum with regard to development viability, because I am mindful of the small application, or the applicant with a minor matter. With permitted development, we have taken much that was not relevant to minor applications out of the planning system, so those people do not have to go through the whole planning process. Permitted development is a satisfactory measure, but I am mindful of the fact that £300 or £400 is a significant sum for a smaller application by a householder or even a small business.
There is another general point. Another benefit of what Mr Mackay has described as a bold move in increasing planning fees is that it makes a contribution to our overall capacity to focus the expenditure of taxpayers’ money where we all really want it to go—on ensuring that our schools and hospitals are well funded and able to operate efficiently. The point that I am making, of course, is that if services are provided at less than the full cost, at a heavily subsidised rate—for example, planning fees, bankruptcy fees or court fees, on all of which we have taken action—that subsidy has to come from somewhere. Money has to go to subsidising certain activities, potentially at the expense of core activities. We have to get our priorities right and adopt a sensible approach about moving to full cost recovery in certain areas. However, there are benefits, because everything is related. It means that we can focus taxpayers’ money on the real purposes that the people who elected us want us to focus on. I hope that that is an emerging principle that is gaining increasing acceptance across the political spectrum.
I was not a member of the committee during the initial evidence sessions, so I want to focus on sections 5, 6 and 7. One of the concerns that I noted from previous evidence was about whether there would be consumer-led input to the code of practice, or whether that would come as part of the consultation process. Does the minister have a view on whether the view from the consumer angle is feeding into that process or whether that would be dealt with during the consultation on the code of practice?
What particular consumers do you have in mind?
Trisha McAuley of Consumer Futures said that the groups that were inputting into the process were linked more to business growth than consumers. I wondered whether the view was that the wider community angle might come through consultation rather than the initial drafting of the code of practice.
We have worked closely with Trisha McAuley in a number of areas, so of course we want to ensure that we take an inclusive approach to the compilation and drafting of the code. I undertake that I will most certainly consult her and her colleagues prior to the finalisation of the code and get her views on that extremely important matter. Of course, the views of the business community will be important as well. I am happy to give that undertaking in response to Mark McDonald’s question.
What is the Government’s view on how the code of practice will enhance the legislation and the work that is being done through regulatory reform?
I think that it will allow us to work together with all the regulators, which is something that we already do. We spend an enormous amount of time and effort working together as team Scotland, whether it is with SNH, SEPA, Historic Scotland, the planning authorities or a variety of other authorities. That accounts for a huge amount of our time—and rightly so.
10:45
The code of practice will be the offspring of the team Scotland effort. That is the approach that we want to take. We do not want to impose on local government, and we do not want to dictate to local government. Accusations that we do are made daily in the columns of the printed press, but I do not recognise that approach. What I recognise is that day in and day out, week in and week out, we are having serious conversations about serious matters with local government but, often, there is no easy solution.
For example, this week, I co-chaired the fourth or fifth meeting of the opencast coal task force. I pay tribute to the co-operation that we have had from colleagues in Dumfries and Galloway Council, South Lanarkshire Council, Fife Council and East Ayrshire Council. John McNairney has been heavily involved in that work, and Derek Mackay and I have visited several of the opencast mines. The idea that this is other than a team Scotland partnership approach is one that gains a lot of currency in the printed press, but it is the opposite of the truth and of the reality of what happens every day.
Of course, difficult situations arise, such as the problems that we have in relation to opencast mines. However, the correct approach is to have a good, positive, collaborative working relationship with all those who are involved in local government and to talk and work through together what are, very often, extremely difficult issues that face us in public life. I am delighted to have had the opportunity to underscore that point.
I thank the minister for his response. He has sort of dealt with the question that I was going to ask about section 7 but I will ask it anyway. Concern was expressed by Councillor Cook about the enabling power for ministers to amend the list of regulators. Presumably, any decision to amend that list—either to add or remove a regulator—would involve some consultation in advance with partners, such as COSLA or local authorities, to ensure that their input is taken on board before any decision is taken either to widen or to narrow the list of regulators under the power in section 7?
Yes. I am happy to give the committee that assurance. The question is very sensible. The process that the ministers would follow when using the power to amend the list of regulators or the regulatory functions, and whether that process would include partnership discussion with the regulators, are important issues. We would certainly consult COSLA and all other relevant bodies were we minded to consider using that power. That would be the absolutely correct and appropriate thing for us to do.
Before another member comes in I just want to ask one question—it might be the final question. My question is for Fergus Ewing. I think that you indicated that you are minded to bring forward stage 2 amendments to introduce primary authority partnerships. Can you tell us what evidence you have gathered about the benefits of primary authority partnerships and what assistance they might provide in relation to economic growth?
I can perhaps give the committee a bit more detail after our analysis of the responses that we have received has been completed. I will do my best to provide more detail, if I can, prior to stage 2. It has been estimated that the UK primary authority scheme delivers net benefits of £19.9 million annually to business and local authorities and generates £3.60 for every £1 of cost incurred. That is one specific answer—there is evidence south of the border that that measure has delivered certain benefits. It is only correct that we should be mindful of that and willing to learn from our good friends south of the border where appropriate—as, sometimes, you urge us to do, convener, in relation to other matters.
To answer the question in a more general way, however, the proposal for primary authority arrangements emerged from business in Scotland. At present, businesses operating in different local authority areas throughout Scotland need to work with each individual local authority. In some instances, that can be time consuming and add to the burden of running a business. It is therefore sensible to explore with businesses and with local authorities through COSLA the operation of such a system in order to avoid duplicating activity time and time again—32 times, potentially.
If I may say so, my impression—this may change following my study of the full analysis of the responses—is that, where a business operates in a particularly specialised way in a specialised area, it is unreasonable to expect 32 local authorities to be equipped with the full range of specialist advice. If, therefore, a particular local authority has that expertise, it seems sensible to take a pragmatic approach. That would perhaps have the effect of removing the burden on other local authorities and enabling them to get on with some of the other functions that we have discussed this morning.
From a pragmatic, commonsense point of view, it seems that there is merit in proceeding to introduce primary authority partnerships. I alluded to the financial benefits earlier. The results of the analysis of the responses will be published at the earliest opportunity. I initially raised the issue in a letter to the committee back in March, so I am hopeful that we can proceed to introduce the primary authority amendments at stage 2. I will do my best to provide as much information as I possibly can to the committee in advance of that.
This may not endear me to the convener or to the minister but I have a question about primary authorities and transferability of best practice. The Minister for Local Government and Planning indicated that we want to make the system more efficient and more timely. Notwithstanding the comments that have been made about potential litigation, has any thought been given to the creation of mediation task forces to try to address any planning or regulatory issues so that we can speed up the whole process without people having to go through the rather lengthy exercise of going to court? I do not expect an immediate answer to that, but I ask you to consider whether that might be a vehicle for speeding up the process.
As planning minister, I am happy to offer the services of Scotland’s chief planner, John McNairney, in a brokerage role if there are issues where that level of intervention is required. I am sure that he would not object. However, there is an important point about mediation and brokerage sometimes being needed in the planning system. Such an approach is possible already and no legislative change is required for it to come into play in terms of the wider regulatory framework.
I will hand over to my colleague Mr Ewing.
I never took the view, when I was sitting where Mr Brodie is, that it was my job to endear myself to ministers, so I would not worry about that—
I included the convener.
Well, I would not worry. However, I did not quite understand the scope of Mr Brodie’s question in relation to the matters that I cover. Could he possibly restate it?
I do not want to go back down the road of discussing the definition of economic growth and the impact that it might have on regulation or on planning. I am asking whether, rather than people going down the legal route, which can be very costly and lengthy, there is some other mechanism that we might consider through some form of mediation—perhaps a mediation group or task force, and perhaps including Mr McNairney. Such a mechanism might address some of the contentious issues much more quickly than if someone had gone down the legal route. As I said, I do not expect a full answer today.
Do you mean issues arising in the planning system or other ones?
It may apply elsewhere, although the planning system is an obvious area.
I will come back to the planning system specifically if that is what Mr Brodie is driving at; I am happy to pick that up. If the system is performing well, best practice in a major application, for example, will involve a good pre-application consultation, a good pre-application discussion and early engagement with elected members to see what issues they might be concerned about. That means that people find out about those issues at the start of the process rather than at the end, as some sort of surprise, after time and money have been spent. Good engagement and best practice will, we hope, lead to the right outcomes.
Where there is a difficulty in the system, there is always legal recourse, of course. There is also the appeals system, which is there for a good reason—to have that second look if people think that policy has not been complied with. However, there can be engagement at any point in the planning system. There is no difficulty with a degree of mediation or brokerage to try to move things on, as long as it is in keeping with the rules and due process is carried out, and as long as all parties—applicants and objectors—are dealt with fairly and openly. Best practice for the most significant applications should almost automatically have good pre-application consultation and on-going engagement.
What might be in Mr Brodie’s mind are the very worst planning applications that have perhaps been in the system for not just months but years. There are some such cases—in fact, they skew the overall statistics. Frankly, the planning system is not there to test an idea and to keep it warm; it is there to get a decision about land use—an appropriate decision about the right development in the right place. There are some legacy cases that should be determined or withdrawn; they should not clog up the system.
Brokerage might happen in an attempt to arrive at a decision as to whether such cases should be determined or withdrawn, but they should not stay in the system causing even further difficulties for the applicant, the planning authority and, potentially, objectors. Various processes are under way to support that approach to take some of those legacy cases out of the system, which will also involve a bit of responsibility from the private sector as a partner. However, there are already tools in the box to assist with that. We do not require new legislation around mediation in the planning service—the function exists.
With impeccable timing, that brings us to the end of our evidence session. I thank both the ministers for coming along and their officials for attending. If there are areas that we want to follow up on after the meeting, we will write to you to seek written clarification, if you are happy for us to do so.
10:57
Meeting suspended.
11:04
On resuming—