Telecommunications Developments
Under item 4, we will take evidence on the Scottish Executive's proposals for telecommunications developments. The aim of this session is to allow the minister to introduce those proposals. We will have the opportunity to ask questions and seek clarification of the details of the regulations in advance of our formal consideration of the regulations at next week's meeting. In line with previous practice, I invite the minister to say a few words.
I will say a few words about our general thinking on planning controls for telecommunications and associated developments. As you know, the order came into force on 23 July.
At the time that the committee launched its inquiry in September 1999, we were on the point of introducing a prior approval scheme such as has come into force in England and Wales. Clearly, the proposals that we have now implemented were heavily influenced by the recommendations of the committee's report. By our reckoning, 32 of the committee's 35 recommendations applied to matters that were under the Executive's control and we have implemented 14 of those in full and 13 in part. There are five recommendations that we have not acted upon.
We have sought to strike an appropriate balance between enabling the industry to provide Scotland with essential communications infrastructure and protecting our rural and urban environments. We have also sought to meet some of the public concerns regarding the environment. We are keen to ensure that planning authorities, as the day-to-day operators of the system, are given clear guidance about the effect of radio frequency emissions on health and the role of the planning system within that. We believe that our guidance will help to clarify those matters.
Clearly, it is also important that Scotland keeps pace with the rapidly evolving technology. We have therefore taken the view that we should not close the door entirely on permitted development, but continue to permit a limited number of antennas of a limited size to be in place on buildings without the need for planning applications. We do not believe that the effect of that exception will be significant enough on the companies' roll-out programmes to reduce their need to develop new positive working relationships with the planning authorities, which are central to the objectives that are shared by the Executive and the committee. However, the exception should allow a number of smaller proposals to come forward without taking up the time and energy of the planning system.
It is also important to note that the five major mobile communication operators, as part of their input to the consultation process, made 10 commitments. When our intention to implement our new planning controls was announced in July, I also announced that I would meet the companies over the summer months to discuss with them what those commitments would mean in practice and what would be expected of the operators in the context of the new planning regime. I held meetings with the five major companies and I believe that the companies recognise that the argument has moved on from the position prior to 23 July. We are now in a position in which the planning system will be the arbiter of most developments.
It is important that we now move forward and I am sure that the committee's questions will reflect that. With the development of third-generation technology, this is clearly an appropriate time to change the basis on which those matters are discussed. The order that came into force will assist us in doing that.
As one of the survivors of the original inquiry—I think that only three committee members have started and finished the process—I recognise that we have come a long way. We have moved from the original intention, which was for prior approval, to the current situation. The committee will probably focus this morning on the exceptions, but that does not mean that we do not consider that the Executive has taken some fairly substantial steps in the direction of the committee's report. Given the fact that we carried out an investigation, took evidence from witnesses, had consultations and felt that our recommendations were appropriate, it is inevitable that we may focus on areas in which the Executive did not accept our recommendations.
There is a drastic need to transfer the companies' 10 commitments from paper into action on the ground. My experience of the companies has not been too good in the past.
Our concerns must also be balanced by the strategic and social role that mobile communications play in economic development and social inclusion, particularly in rural parts of Scotland. The committee's findings recognised all that and identified a system whereby we could balance those requirements. We may look at mast sharing, telecommunications planning and other areas.
Fiona McLeod will open up our questioning on those matters.
We want to examine some of the content of SSI 2001/266. As the convener said, we will probably concentrate on the five areas of our recommendations that the Executive did not pick up on.
In your introduction, you said that you have sought to strike an appropriate balance and that you hoped the order would help us to move forward. You said that the order would assist the Executive to meet its commitments to the telecoms industry and would also meet the public's concerns. None of that has been accomplished in what the order says about ground-based masts. We know that ground-based masts will require planning consent, but there are grey areas—bits have been missed out. You must be as aware as committee members that the controls over ground-based masts are already causing great disquiet in our communities—just last night, I was at a bad-tempered meeting in Kirkintilloch.
One of the biggest problems is that we should have introduced retrospective planning permission. Although that was not a committee recommendation, the SNP recommended it. Given the fact that you did not introduce retrospective planning permission, why will replacement ground masts now require planning permission? The companies that rushed in during the two-week period and stuck up anything are now coming back and saying that they can put anything they like on their site now that they have had time to consider. At the meeting last night, BT Cellnet admitted that what they stuck up during the 14-day period was not what they wanted. The company admitted that it will come back to erect something else, which will not require planning permission under the new controls.
Also, you have said that planning permission will not be required if the mast is less than 2m high. What do we do if a company comes back and erects another 2m? What about the creeping growth of some of the existing masts?
The two questions are clearly related to similar circumstances. For clarification, I should say that although the adjustments that may be made to an existing installation include an increase in height by up to 2m, such an increase may happen only once. In a sense, that answers your second question as well as your first. Of course, cases such as the one that you have described occur and I am interested to hear of them.
The general point is that where a site is already in use, it is not appropriate to introduce retrospective planning requirements. We do not confine that view to ground-based masts; on planning matters, we hold that view across the board. Once a developer has gone through the planning procedure and has succeeded in obtaining consent—or, alternatively, has been rejected—that should be seen as the end of the process and the matter should not be revisited.
Having taken that view, it was logical that we consider what should happen to a site that existing operators use for second-generation mobile telephony—there are many such sites across the country—when the operator wishes to add third-generation mobile telephony to that site. We feel that that is appropriate if it can be done within the tight constraints that we have described. The 2m limit and the limit on additional antennas on buildings are significant constraints on operators who are expanding their provision from a given site. It is important to be clear that changes to the site will be allowed only as a one-off.
For people who live next door to such masts, a 2m increase in height is a phenomenal difference.
The committee is very keen on mast sharing. Why did you not decide that mast sharing must be considered for ground-based masts? When a company wants to make a change concerning the 2m range, would not that be an appropriate time to say to that company and the other companies that, if a change is being made on that site, all the companies should be considering mast sharing on that site?
Before the minister answers that question, there is an issue of retrospectivity that we must consider. The committee agreed that retrospective legislation was not appropriate—for reasons including complexity, delay and legal cases—because we wanted to progress as quickly as possible. However, our fallback position, for want of a better phrase, was telecommunications planning at local and strategic levels, whereby sites could be negotiated away, based on a projection of needs for the roll-out of third generation. Our back-up to retrospectivity was the fact that planners and the five big companies could sit down round the table and negotiate, discussing how they saw the roll-out going and how they could remove some of the more obvious difficulties that communities might have over the sites. Through that negotiation process, a lot of the heat could be taken out of the situation.
The committee felt that retrospectivity would not work and would delay the whole process. We felt that there should be a back-up that would offer the chance to negotiate through a local planning process. However, the Executive has not taken up that recommendation. I wonder whether you would deal with that point when answering Fiona McLeod's point.
The answer to both points is similar, in that the Executive also feels that mast sharing is often the best way. We also recognise the importance of the kind of planning discussions that the convener described between operators and planning authorities. We have chosen not to make such discussions mandatory, and there are good reasons for that. In some cases, clearly, there will be a positive effect if companies choose to use the same facility; impact will be reduced and so will the number of other sites that may be required nearby. However, in other cases, a decision to mast-share may mean replacing a well-disguised slimline facility, carrying a limited number of antennas, with something that may have to be a lattice structure because it has to carry significantly more weight, has to provide more space for the antennas, and has to be able to withstand significantly more wind. Like the committee, the Executive would like to encourage mast sharing when that is the right solution. However, it will not always be the right solution.
It is important to acknowledge that the roll-out of third generation will inevitably mean that more sites are needed. The Executive acknowledges that, because of the technology involved, every third-generation facility cannot be accommodated on second-generation installations. The cell that each transmitter will cover is likely to be a lot smaller than it is for existing installations. Yes, we need to encourage mast sharing when it is feasible, and yes, we need to encourage discussion between the developers and planners about how best to proceed in a local area, but the Executive's clear view was that an attempt to make that mandatory would not necessarily be productive.
On the subject of third generation, I believe that two companies have announced publicly that they intend to share installations where possible. There has also been speculation about a further two companies—although I have no specific knowledge of that. It is worth noting that there may be other imperatives towards mast sharing beside Government regulation.
I, too, noticed those announcements in the media; I hope that they indicate a change in approach and culture in the big five companies. The companies need to live in the new world and stop complaining about the old world and harking back to it.
Discussions about masts on buildings drove the original inquiry—certainly from my perspective, where communities in East Kilbride high-rise towers had installations of Jodrell-Bank-like proportions on their roofs. The inquiry was held because we did not know how or why masts were located. Some of those matters were discussed during our inquiry. When considering the amenity and health issues that relate to buildings, why adopt a different approach to that which was taken with ground-based masts? We want to explore further the difference in the way that those questions have been handled.
In general, we intend to offer an opportunity for less contentious, smaller developments. We have said that limited numbers of antennas can be placed on buildings and that those antennas will be of limited size. Issues arise over third-generation roll-out. Over the summer, we met the mobile phone companies and I explored with them how much use they would make of permitted development rights. I wanted to get a sense of what the proportion of those developments would be in comparison with new ground-based masts or other developments that would require planning permission.
It is fair to summarise the position by saying that, in the main, the facility will be useful, but it will not account for the majority of future development. Permitted development will give companies the facility to carry forward some of their developments, but they will have to do so in the context of dealing with planning authorities on the majority of their roll-out projects.
Perhaps I did not answer fully the convener's earlier question about how the authorities and the operators should relate to each other during this period. We considered carefully what the committee had to say about a national planning process. From our dealings with the mobile operators, it was clear that they were prepared to tell us their roll-out plans for area A and area B. I am confident that the mobile operators, for their own good commercial reasons, have an incentive to take early talks with the planning authorities. That means that they can talk through their roll-out plans.
I would be disappointed if it were proved that the permitted development rights that remain for installations and buildings were used other than to speed up less contentious developments. That is because the people who are making those developments on buildings are sitting down with planning authorities, talking about their roll-out programmes and seeking agreement on sites for other locations. Perhaps that will not be as important in the next generation roll-out as it was in the last, partly because of the new restrictions that have been applied to the next generation roll-out, but also because it needs to be seen in the context of the wider planning regime.
Thank you. As they say, we will watch as that one develops.
The permitted development regulations allow up to two small antennas on dwelling-houses, but not masts. However, 4m masts are allowed on flats. When is a house a flat or a flat a house? That needs to be clarified.
John Gunstone will give some technical guidance, as there are rules that apply to fixed telephony points for dwelling-houses.
John Gunstone (Scottish Executive Development Department):
In planning terms, a dwelling-house and a flat are not treated in the same way, as they are different entities; the fact that they both serve the same purpose is by the by. Different rules exist for dwelling-houses and for blocks of flats. That applies to the installation of telecommunications equipment as well as to many other circumstances.
The two small antennas that are used by companies such as Atlantic Telecom may have not a traditional telephone, but a radio connection. That facility is available nowadays. In the past, one antenna was permitted; that was increased to two because, in modern-day communications, people might want a telephone line, a fax line, an internet connection and goodness knows what else. The increase allowed a little bit of freeing up. The antennas are much smaller. They are wall-mounted boxes like burglar alarms, rather than antennas that stick up 2m to 6m into the skyline.
Does that mean that masts can be mounted on flats?
Yes, according to the height regulations on the building.
That is the position that we wanted to clarify.
John Gunstone's point about the general treatment of buildings in planning is what is relevant. It is important to separate the fixed radio link operations—for which we are talking about permitting development on all houses—and mobile telephony, which has caused the greater concern. The regulations increase the freedom of manoeuvre for fixed radio link telephony. We see no cause for concern in that, which reflects the difference in technology between the two types of communications system.
Why are masts not allowed on dwelling-houses if they are allowed on flats?
Purely on the grounds of amenity, scale and proportion. It would be inappropriate, in planning terms, to put a mast on top of the roof of a bungalow in Ravelston Dykes.
Because of the physical appearance rather than any other consideration?
Yes.
If someone has a dwelling-house that is split into two—a dwelling-house that was originally flatted—could a 4m high mast be put on it?
No. The operators would not be allowed to do that on the grounds of height.
If they do, we will know that they got the idea from the committee.
The definition of dwelling-house includes reference to the height of the building. That should answer John Scott's point about redefining a dwelling-house.
On matters ecclesiastical, we will hear from Maureen Macmillan.
I am fascinated by the ecclesiastical exemption. It is a bit like benefit of clergy or the star chamber.
I understand that no formal listed building consent control is required for the siting of masts in some categories of listed ecclesiastical buildings, as long as the buildings are still in use and the permitted development rights are available. How did that exemption come about?
The important distinction is between listed building consent and planning permission. The new planning requirements for telecommunications masts will apply to churches just as to any other building. Listed building consent is slightly different and is related not directly to planning permission, but to Historic Scotland's view of whether changes can be made. Historic Scotland has been working voluntarily with the churches to bring the consent rules up to date, as the situation throws up a lot of anomalies—that is recognised by the churches as well.
How many such churches are there? Is there a possibility of masts and antennas being sited on those churches? Churches are often prominent in rural areas. I would hate to see a forest of masts springing up in my constituency because the Church of Scotland or the Free Church had signed a contract with Vodafone or whoever, although I note the fact that the submission of applications to a planning authority is voluntary. Is that situation being addressed?
Yes. A scheme that was designed to change the practice was worked up by Historic Scotland and the Scottish churches collectively. According to that scheme, the churches agreed that each denomination would have an internal decision-making body that would refer on cases of buildings that would not have received listed building consent if they had not enjoyed ecclesiastical exemption. I hope that that is clear enough.
The scheme was set in train a couple of years ago, but there was a misunderstanding or a failure of all the parties to work the scheme in the way that they had understood at the beginning. There was, in other words, an attempt to run the scheme on a voluntary basis. It fell apart, not for any sinister reasons, but because it did not operate in the way that it was intended to. The flaws in that have been considered again and I believe that the scheme will be relaunched in January next year.
As far as telecommunications development is concerned, listed building consent is at the side; the key question is planning permission. That is not affected by ecclesiastical exemption.
As the minister is probably keenly aware, health is one of the issues that came before the committee consistently during our inquiry. Correspondence about the issue still fills our postbags and we also receive telephone communications about it. Along with the Transport and the Environment Committee, the independent expert group on mobile phone technology recommended that public health should be taken into account, but that does not seem to have happened. There were recommendations that health authorities should be involved in the planning process and that indirect, adverse effects on well-being should be taken on board. Will the minister explain the absence of those recommendations from policy?
I know that the committee made a number of recommendations on that area. We took the view that the planning system ought not to attempt to do somebody else's job—that is the defining argument. Planners would be entitled to seek reassurance—professional guidance, if you like—on health matters.
Behind the Stewart report is the fact that the guidelines by which the radio frequency emissions in the UK were measured have been much toughened by the switch from the National Radiological Protection Board to the International Commission on Non-ionizing Radiation Protection. That has given us a tougher set of standards by which to measure radiation. As part of the changes that we introduced, we require—both for planning applications and permitted development rights—that any proposals for developments are accompanied by a certificate of compliance with the ICNIRP guidelines.
I will come back to other matters, but the one measurable health impact issue that we are all aware of is radio frequency emissions. Our priority was to establish the appropriate guidelines. Although this is mainly a reserved matter for the UK Government, we have taken a close interest in the monitoring of the effectiveness of the standards. We should be careful to ensure that the ICNIRP guidelines continue to be an effective protection in that area of health.
The Radiocommunications Agency, which is accountable to the Department of Trade and Industry, has begun to conduct a survey of the frequency of radio frequency emissions in schools, which is often a focus of concern. The first survey of that kind in a Scottish school was conducted in the past two or three weeks. The highest level of emission in any school in the UK is one four-hundredth of what is set out in the ICNIRP guidelines. Some comfort can be gained from that.
The ICNIRP guidelines are significantly tougher than what went before, but there is still no installation of which we are aware that comes anywhere close to emitting the levels set out in those guidelines. The requirement that operators provide certification that those guidelines are being met is clearly important.
Robin Harper mentioned the Stewart inquiry's other conclusions, which were that there might be indirect effects on health or effects on health that cannot be measured or definitively ruled out. That has encouraged the precautionary approach. We endorse the precautionary approach, but feel that the UK measurement and protection measures and our new planning requirements will achieve the precautionary approach in practice.
How does the Executive propose to address the fact that thousands of people are still concerned about health effects? The fact that people are worried about health issues should be a material consideration, irrespective of the state of the science and current evidence. Do you think that what you are proposing sufficiently addresses that?
Perhaps I could come in on that point, which is an important issue for those of us who sat through many long evidence-gathering sessions. We found no conclusive evidence on the health effects. However, we concurred that the precautionary principle should be applied in the planning process. That came down to several issues relating to hierarchy of site selection, which is something that the Executive has given a nod to, although I do not know whether that has sufficient force. We did not agree with the notion of a cordon sanitaire—there was no scientific evidence to suggest that we needed to close things down.
Our findings are underpinned by the fact that we constantly talk to our communities. I have stood in front of 80 to 100 people outside a high-rise block and said to them that there is no evidence to suggest a health effect. Sadly, people have lost faith in science. We need to re-establish that faith in science. Our recommendations try to restore that faith and put some local focus in the planning process.
I hear what is being said about roles and responsibilities, but I should point out that we are saying not that there is a health risk, but that people think that there is and that there needs to be an on-going process that can satisfy them that there is no such risk. The irony is that, of those people standing outside that high-rise in East Kilbride, probably 95 per cent had a mobile phone. I constantly remind people of the current scientific advice, which suggests that there is no health risk but that we should adopt the precautionary approach. How have your actions tackled the issue, which is central to our findings, of convincing people on that point?
There is a complex of concerns. However, there is no doubt that people's concerns about health effects—unmeasured and unproved—lie at the heart of many of the campaigns for change. We fully recognise that. The other aspect that has driven the campaign for change is the fact that until now operators have not been required to have discussions with anybody for the majority of developments that they have undertaken. Operators are now subject to the planning regime, which means that they are required to have those discussions. We anticipate that those discussions will remove a good deal of the suspicion in the public mind. A good deal of that suspicion comes from the fact that people can wake up one morning and discover a development taking place on the other side of the street about which they had no advance warning. That is fundamental to the problem and should therefore be fundamental to the solution. We are attempting to put in place as many constraints as we can to encourage all parties to have such discussions.
It is as though people think that a development is happening on the QT because there is something to hide—the operators are up to something and therefore there must be a health risk. I do not diminish people's concerns but we should recognise that those concerns are compounded by the fact that there has been no culture of communication between operators and communities. Changing that culture is important in addressing those concerns.
The other approach is to deal with specific concerns. We are dealing with the radio frequency emissions in partnership with the UK Government. It is important to carry forward the research that the UK Government and the Executive are supporting to get to the bottom of some of the existing concerns. There is evidence, however limited in scope, of the impact on brain activity of proximity to mobile phone telephony. It is clear that that must be investigated, if only to get at the truth. We must also recognise that, as Sir William Stewart said last week, many of the risks from mobile phone telephony are much greater for users than they are for neighbours of the base stations. Nonetheless, those concerns exist.
Collectively, we must ensure that people are aware that there are unknowns for users and consumers of mobile phone services and that on-going scientific work is trying to get to the bottom of those concerns.
I note your comments on the concerns about emissions and on the fact that emissions from phones are greater than those from masts. However, we do not recommend that children use mobile phones and I am concerned that masts are already sited near children's playing fields. You said that we cannot do things retrospectively, but we must examine the health impact of masts that are close to children's playing fields, given that there are concerns about that.
Consideration of whether what the convener described as cordons sanitaires—that is, areas of prohibited development—should be imposed was an option that was open to us. We decided against that option for two reasons. The first was based on the steps that we were able to take, reinforce and control on the measurement of radio frequency emissions. It is important to note that if, in its audit of existing installations, the Radiocommunications Agency finds an installation that exceeds guidelines or that is in any other way regarded as a threat to health and safety, it has the power to switch off that installation. I would expect that power to be used, although that is not a matter for the Executive, as the agency is accountable to the UK Government. I would be surprised if the agency did not respond by switching off an installation if it found a source of danger.
The second reason was based on our view of the location of existing installations. I should not speculate on numbers because I always run the risk of getting them wrong but, if I am correct, there are about 500 installations on school sites across the UK; the figure for Scotland is proportionately smaller.
Communities enjoy two safeguards in respect of new developments. First, local authorities are usually the providers and owners of schools and will make their own judgment on whether to accommodate masts on school premises. We know what the response of most local authorities is likely to be. Secondly, the same issue arises in respect of the planning process, as the applications must satisfy the requirements of local plans and must also win the consent, as it were, of the planning system. That is the key to a lot of these questions. By bringing development into the planning system we put a constraint on the developers, as they will have to talk to planning authorities. Any developer that wishes to build a positive working relationship with planning authorities will have to recognise the particular areas of concern to those authorities.
If we had evidence that suggested that permitting development on school property created a greater hazard to children than that created by permitting development on other property, we would have acted on that evidence. However, we had no such evidence and we acted on the basis of the evidence that we had, while recognising the real-life constraints that will exist for developers who go through the planning system.
Does the minister have more information about the powers that allow the Radiocommunications Agency to switch off masts that break regulations? If he does not have that information, perhaps he could send it to us later.
Nick Evans knows the precise statutory basis for those powers.
Nick Evans (Scottish Executive Development Department):
Those powers, which the Radiocommunications Agency can exercise on behalf of the Secretary of State for Trade and Industry, derive from the Wireless Telegraphy Act 1998, I believe.
If there is any further information, just send us a note, but we are happy with what you have said on that substantive point.
My point follows on from matters that Maureen Macmillan explored. The Transport and the Environment Committee recommended avoiding residential and school areas for the development of masts. I note what the minister said about protection for schools, but that protection would not take account of masts that were close to schools. The location of masts close to schools and houses is a matter of contention for communities. It is my impression that local authorities feel that, although they have been given the responsibility for granting planning permission, they have not been granted the tools to respond to communities' concerns.
It is important to address the question of how local authorities now implement the powers that they have been given. We have placed telecommunications developments on the same footing as similar developments, which has not been the case before. That means that local authorities have additional powers, because an application for a mast has to come before them and they can treat it in the normal way. They must do that in line with their existing plans and with the national planning policy that we issued at the same time as the regulations.
We did not intend to give—and have not given—local authorities a power of veto and they recognise that fact. I do not think that they expected to receive a power of veto over development, nor would such a power be appropriate. Local authorities are empowered to represent the views and interests of their areas in direct negotiation and discussion with operators. The regulations do not give a power of veto.
I hope that the creation of a constructive relationship between operators and planning authorities follows that allows everything to be dealt with locally. That is our intention. As was covered in our previous discussion, we have set a national planning policy that states clearly and unreservedly that we believe that modern telecommunications development is a good thing and that it is down to planning authorities to find the best way of accommodating that. We have to put it as bluntly as that, because it is important to recognise that if we are to achieve the roll-out of telecommunications technology, particularly third-generation mobile telephony, we must start from the basis that it is good to have such technology in Scotland and that public authorities must work with private companies to develop it. However, if we expect the active support of planning authorities in developing communications technology, the operators must be prepared to take over issues such as location and design.
We expect the new system to work on that basis, but we recognise that there will be difficulties. There is a legacy, at worst, of distrust and, in general, of lack of communication between planning authorities and developers. We recognise that it might take a little time to get over that legacy, but it is essential that we move beyond that.
You have not quite responded to the question of how local authorities can take into account the interests and views of their communities. Communities are concerned about issues such as health. Although I acknowledge the convener's comments about proven links between mobile phone masts and health, he also mentioned people's distrust of science after matters such as BSE and the links between health and overhead power lines. That kind of distrust arises because such links are not acknowledged and the information later changes.
Furthermore, the Stewart committee raised the indirect effects on well-being, which are likely to be maximised by proposals to site masts directly outside a school or someone's back garden. If local authorities cannot take account of the effects on health or of the proximity of masts to schools or houses, they seem not to have any tools to respond to the concerns of communities.
I understand your point. Our advice and guidance to local authorities will contain a number of suggestions about the information that planning authorities should seek from operators when they consider planning applications. Furthermore, planning authorities will be able to consider not only the content of applications but the ability to obtain such information when they decide on any applications.
For example, operators will be required to provide with their application evidence that they have examined siting and design issues. I know from my own postbag—and I am sure that committee members are in the same position—that people often complain, "I have no problem with having a mobile phone mast in my neighbourhood, but it is being put in the wrong place." Before a planning application is considered, a planning authority will require the operator to provide evidence that they have taken alternative locations into account. Such a requirement on an operator or developer helps to build a dialogue that will allow sites to be identified in advance, which is something that we are seeking to encourage.
If a telecommunications company identified a site that it felt most efficiently maximised the signal to a target area, but the local authority identified other sites that were not as efficient but were far less visually intrusive and more acceptable to the community, would the local authority be able to decline an application for the site favoured by the telecommunications company?
Technical efficiency, siting and design are all considerations in the final decision. As in all decisions on planning matters, any final decision will rest on a judgment about the circumstances of the case. The major change that the order introduces is that the planning authority will have all the information before it, which means that all the issues will be on the table. That has not been the situation in the past.
I am aware of the time. I know that John Scott wants to come in, and that Fiona McLeod has a procedural question. I ask members to keep their questions short, and the minister to keep his responses tight.
I want to ask a supplementary to Bristow Muldoon's question. I am slightly alarmed by the minister's comment that there is no power of veto, which means that there is no ultimate sanction and that if the developers press for a particular site, the local authorities will not be able to stop them.
I expressed myself badly on that point. I meant that the local authority has no power to veto the development of radio telecommunications in its area per se. I did not mean to say that it did not have the power to reject an individual planning application, which is the point that Bristow Muldoon was pursuing.
I want to turn to the procedural mess that we got into when the statutory instruments were laid. Given that your department has been considering what to do about telecommunications since autumn 1999, why was the order not laid until 25 June? As a result, you had to write to the Presiding Officer and explain why you were breaching the 21-day rule. Can you explain in detail why you felt you had to rush the order through at the last minute?
That is the price of democracy. You can find yourself in a position where you are dealing with significant change and you are acting in the context of public concern. When you conduct a consultation, you do so in good faith and in depth. That is what my predecessors and I did to come to the right conclusions. Having gone through that process, we found, towards the end of June, that although not every issue that had been raised in the consultation could be answered satisfactorily from the point of view of the person who raised it, we had addressed an awful lot—we were doing everything we could to address the technical and more general points that had been raised. We then had to decide whether to press on and introduce the regulations, to bring them into force in the summer, or delay laying the regulations until the Parliament resumed last week. We came to the judgment that we should press on.
We laid the regulations and they came into force on 23 July. We felt that that was the right thing to do. Having consulted widely, it was clear that there was a need for change and that, once everybody involved was aware when the change would happen, the sooner the regulations were laid the better.
So it was not the case that the recess came up and hit you in the face and you realised that you had not laid the regulations.
No. I can vouch for the fact that I and my officials were conscious of the need to lay the regulations for some time before the recess.
You have just published planning advice note 62, on radio telecommunications. Annexe E publishes the operators' commitments, so I presume that operators were involved in producing the document and approve of its contents. The first three commitments are the most important ones: to develop clear standards and procedures for consultation with local authorities; to participate in pre-roll-out consultation; and to publish clear, transparent and accountable criteria and cross-industry agreement on site sharing. There are no time scales against those commitments. Will the Executive be able to monitor operators' compliance with and dedication to the commitments? Can the Executive call the operators to account?
Absolutely. It is appropriate to raise that point at this stage in our discussions. That was one of the questions I was keen to discuss with operators over the summer. The precise date on which they said that they would undertake the detail of the commitments varied, but the answer from all of them was that the key commitments were either in place or would be in place in August or September. We have obtained an assurance from the operators on the implementation of the commitments. As was mentioned, it is fine to have on paper commitments to consult and so on, but the key point is how the commitments are translated into practice. We will maintain an interest in that matter.
On future monitoring, we have had discussions with planning authorities to seek their support for our collection of data and their assistance in keeping a watchful eye on the effectiveness of the planning process and in dealing with applications. I have a forthcoming meeting with the Federation of the Electronics Industry, which includes mobile phone operators and fixed-link operators. I will address with the federation the on-going implementation of the commitments and how to gather evidence that the implementation is happening.
I want to return to the procedure for laying statutory instruments. SSI 266 was laid on 19 July to replace SSI 244. It contained an additional provision to revoke the existing planning consents. What led to the instrument being laid later? At what point was the decision made? What was the feedback from operators and local authorities on the revocation?
The simple reason for the decision to lay a further order was that within days of the initial order being laid, we were conscious that different interpretations were being offered as to the impact of the changes in the short term. Those ranged from a view that the order would require all development to cease at midnight on 23 July, and that operators would then have to seek planning permission, to the view—at the other end of the spectrum—that, as long as an operator had notified a local authority of its intention to develop before 23 July, it had beaten the deadline. There were other views between those two extremes.
From the feedback in the first two or three weeks of July, it was clear to us that there was a danger of planning authorities throughout Scotland applying inconsistent standards. It was also clear that that would be in nobody's interest and that it would create a situation that we wanted to avoid. Therefore, we decided to implement a transitional arrangement so that everybody knew where they stood.
There was some discussion about what the appropriate transitional arrangements should be. My decision, on the basis of what we knew of the technological position, was that any development that had been set in train before we announced the laying of the initial order could be expected to be completed within a couple of weeks of 23 July and so should be permitted to go ahead, but that we should not permit a more generous period because that would lay the industry open to suspicion of abusing the transitional period and lay us open to suspicion of permitting such a thing to occur.
We were keen that the transitional period should be clear, fair and should not penalise people who had genuinely undertaken development three or four weeks before 23 July, but also that it should not permit the flinging up of installations at the last minute. We therefore set the period at a fortnight.
Sadly, in parts of the country, the industry was laid bare in that period. In East Kilbride, a wagon turned up on the Sunday to dig a hole so that the operators could say, "We've started, so we'll finish." That was a clear abuse of the process. That did not happen throughout Scotland and not every company did that, but it happened locally and I was contacted about many such incidents throughout Scotland.
That is now in the past. You spoke earlier about living with the current system and about companies now understanding where they fit into the planning process. That is a much more valuable way to proceed. I have direct experience of the situation having been abused on occasion. That was most unhelpful, as the committee is trying to balance helping the industry against community needs. Most of us agree that technology is necessary and is good, but we need to balance that against the needs of the community in relation to planning matters.
The minister said that the price of democracy is the regulations. Perhaps if he had brought the regulations before the committee timeously and they had been scrutinised under the 21-day rule, he would not have had to rush in subsequent revocation, because the problems would have been picked up by this committee or by the Subordinate Legislation Committee.
Had we been able to do that, we would have done so. If I recall rightly, our initial target date was 6 June—we had hoped to be with the committee on that date. I assure members that the delay had no connection to other events on 6 June, but was simply to ensure that we had collected all the necessary responses to the technical points and other points that had been raised in the consultation, so that we were as sure as we could be that the regulations would have effect when they came in.
We have had a fair hit at the matter. There are no other questions. The minister has had a hard morning with us. I hope that he has enjoyed it. I found the discussion interesting and I thank the minister and his officials for coming along.
Before we go into private session, I want to place on record the committee's appreciation of Shelagh McKinlay's hard work. Shelagh leaves us today to go on maternity leave.
We now move into private session for the final two items. The first is consideration of the committee's draft annual report—it is usual to discuss draft reports in private. The second item is the conclusion of the contractual arrangements for the committee's adviser for its water inquiry.
I thank everyone for attending.
Meeting continued in private until 12:48.