Local Government and Regeneration Committee

Meeting date: Wednesday, September 14, 2011

Official Report 423KB pdf

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Petition

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Planning Circular 3/2009 (PE1320)

Agenda item 2 is an oral evidence session on petition PE1320, in the name of Douglas McKenzie on behalf of Communities Against Airfield Open Cast. Members have received a paper from the clerk setting out the background to the petition. Three witnesses will contribute—George Eckton, Craig McLaren and Jim Mackinnon. The objective of the session is not to debate the merits of a specific planning application but to look at the broader issues that the petition raises about the planning system in Scotland. I invite the witnesses to make an opening statement.

From a local authority perspective on the issue raised in relation to planning circular 3/2009 and in the committee paper, the principle of further tweaks to the planning system—not specifically articulated in terms of the major developments they relate to—appears to go against the ethos of the current planning reforms, which is to bed in minor tweaks and seek to move things forward.

Issues have been raised about a democratic deficit with regard to applications that lie near boundaries of adjoining local authorities. The majority of our members would see custom and practice, in terms of the consultation that they undertake with their neighbouring authorities, as dealing with the majority of such applications. The new strategic development plans, and their more strategic focus and highlighting of major applications that might lead to such issues through the plan-led process, may in the future negate a large number of such applications and the issues that surround them.

I echo what the convener said about not commenting on individual planning cases but talking about the principles. Planning circular 3/2009 is all about trying to minimise the use of ministerial call-in powers, making what we do much more proportionate, and focusing on the national interest and areas of national importance within the context of the concordat between COSLA and the Scottish Government. We appreciate that planning authorities are required to give due consideration to all representations to planning applications, including those from outside their local authority area.

One of the things that we wondered about the principle of the case was that, when two authorities have different views, there is no higher body that can resolve a dispute, unless the case is called in by Scottish ministers. That is where the democratic deficit claim comes in; people in a neighbouring authority do not have the means to elect or unelect councillors who have made a decision.

Of course, as George Eckton mentioned, a balance needs to be achieved between the speed of the planning system and the planning process and engagement and democracy. That is nothing new in the planning system, as I am sure everyone knows. We suggested a possible approach of introducing a system of referral to Scottish ministers that is based upon certain types of major planning applications being defined by the planning hierarchy as significantly contrary to the development plan and to which a neighbouring authority has objected.

Let us start with the law. The law on making decisions on planning applications is very simple. Planning applications shall be made in accordance with the development plan unless material considerations indicate otherwise. The first port of call is to look at the development plan, to see what it says, and then take into account lots of other things, such as the views of individuals and communities and the responses of statutory consultees, for example. Applications have to be considered in the round.

In theory, the Scottish Government can call in any planning application. If someone wants to build an extension to their house or a hot food shop, in theory the Scottish Government could call in the application. However, planning circular 3/2009 sets out the circumstances in which a planning application should be notified to Scottish ministers. We should be clear, though, that a notification does not actually mean a call-in; it just means that the application will be notified. The purpose of notification is not to take a decision one way or the other—it is about whether the application raises issues that ministers should consider. If it does, the case will go to the directorate for planning and environmental appeals, and it will invariably involve a public inquiry.

Craig McLaren and George Eckton have alluded to the changing relationship with local government, and the concordat, which is absolutely fundamental. It is about empowering and trusting local authorities. I understand that decisions on things such as opencast coal or energy from waste are deeply divisive. The idea that they might not be is fanciful, and it is understandable that people have strong views on such issues.

In circular 3/2009, we have three categories of notification: local authority interest cases; cases in which a Government agency has objected; and opencast coal cases that are within 500m of a community. The reasons for that are historic, because opencast coal has gone backwards and forwards before parliamentary committees over the years, and we just wanted to give communities that additional protection.

11:30

As I said, certain cases that come to our notice are not part of the notification direction and we can decide whether to intervene. Indeed, such decisions can be made pretty quickly. If we look at the committee report on a planning application, which is available to us through the e-planning system, and find, for example, that the applicant has ignored the development plan and community representations and that there has been a demonstrable failure of process, we can intervene. However, we have by and large found planning reports over the years to be very fair in recording the views of all sectors and providing elected members with a basis for local decisions.

I also said that we can issue directions quickly. In fact, we can issue a direction when the committee report is published or within minutes, almost, of a decision to approve something. For example, we recently issued a notification direction on a retail development in the green belt in Midlothian. The proposal itself does not fall within the categories for notification direction, but surrounding authorities—City of Edinburgh Council and East Lothian Council—objected and we acted very quickly. The application is now before ministers and we have to decide whether to call it in or return it to Midlothian Council as the determining authority.

It is quite difficult to have hard-and-fast rules on this. Although three categories of application must be notified, other applications can come on to ministers’ radar. With the Midlothian one, Rhona Brankin, who was MSP at the time, asked to meet ministers to discuss it. We are aware of locally controversial applications but it should be pointed out that locally controversial applications are not necessarily of national interest. In any event, all this happens against the background of a local authority being empowered and entrusted to take fair and reasonable decisions.

I acknowledge your comments about having notification instead of automatically calling in applications. However, to members of the public, it appears that if, say, Scottish Natural Heritage or the Scottish Environment Protection Agency objects, the application gets called in automatically. If an objection by a neighbouring authority automatically led to an application being called in, that might bridge the democratic deficit that has been mentioned.

It does not follow that applications subject to notification because of an objection by a Government agency are called in. For example, in a recent case in Pitlochry, SEPA objected on grounds of flooding; however, on our own advice, we concluded that the planning authority had perfectly adequately weighed up the arguments for and against and that the application should not come before ministers. When Transport Scotland expressed certain reservations about applications in East Lothian, we chose not to call those in either. We have tended to call in applications for wind turbines where genuine concerns have been expressed about their impact on aviation safety or the safety of individuals and communities but, as I have said, notification does not automatically mean that the application is called in. Indeed, we are increasingly sparing in our use of the power these days.

If a neighbouring authority objected to an application, would it be notified automatically to ministers?

It certainly would not be notified formally. However, if there were widespread concerns—and I suspect that in such cases the local authority would be responding on behalf of local people—it would certainly come on to ministers’ radar. The local MSP would certainly, and rightly, be raising such matters with ministers, and we would discuss with ministers whether we should put out a notification direction. Essentially we are seeking to safeguard the process and ensure that the arguments have been properly and fairly represented. Without going into the detail of the application that I referred to, I believe that it was refused on seven grounds, including being contrary to the development plan and the impact on surrounding communities. In practice, the issue did not arise but had the planning authority been minded to grant the application for a development in an area of great landscape value, we might well have had to take a different view. We stand ready to do so, should the need arise.

How often does a local authority object to something happening in a neighbouring authority?

I do not have the details. That might happen in the case of opencast coal, where vehicle movements might impact on the surrounding local authorities. The other situation would probably be major retail development, which might impact on existing centres. For example, when there were plans afoot to increase the retail floor space in Livingston town centre, the City of Edinburgh Council objected. That was notified and we did not call it in.

A lot of major developments would in any case form part of the new structure plan, and it is likely that agreement will have been reached between local authorities to get to the stage of the completed structure plan. If it is so unusual for a local authority to object to a planning application in another local authority, when that happens there is probably something afoot and perhaps there should be an official notification and a call-in.

I understand that perspective. All I am saying is that notification gives rise to the expectation that there will be call-in, but we have other mechanisms in place to identify applications that have caused genuine concern. The question is, is the decision being taken at the right level and is notification or call-in justified in the circumstances?

Another local authority is not the same as a Government agency; it is another local authority. I live on the border of a local authority area and what bothers me is that we want co-operation and culture change in that direction. Might not this automatic notification business just create a degree of, if not aggression, an almost threatening atmosphere between local authorities? Local authorities can already oppose or comment on something happening in another local authority. Is this not a wee bit excessive? It will create the wrong kind of atmosphere for all local authorities to work together. It seems a wee bit heavy-handed.

In Lothian, there is a mechanism when a local authority objects. That was the case with a retail development in Midlothian, which was referred to a joint committee of the constituent councils, which discussed and debated the development. It may or may not lead to tensions, although I suspect that that comes down to personalities and politics rather than the planning merits of the case.

Mr Stewart’s perspective is perfectly legitimate, as is that of Mr Walker. The question is, should we put out a formal notification direction to require this, because that may raise unrealistic expectations about a higher level authority going over and referring back. Ministers want to ensure that the process has been fair, that proper account has been taken of the views of communities, whether or not they are in the authority area, and that proper account has been taken of the development plan and the views of statutory consultees and the local authority. I do not see it as a democratic deficit. Ministers want to ensure that the process is fair and transparent. Bearing in mind the tenor of the previous discussion, about speeding up the system, this would not speed up the system.

One of the things that we have been trying to do since implementing the 2006 act is to make the planning system more co-operative and less adversarial. I like to think that we would still have that process. We would see any proposal that we had put forward as being very much a last resort, once we had been round the houses trying to ensure that everything that could be done was done to try to resolve the situation. Cases in which the power would be used would be few and far between.

For the majority of local authority applications, it is custom and practice to notify neighbouring authorities. As Mr Mackinnon says, retail is one of the principal issues. As a former planner, I know that there is potential for local authorities to go as close as they can to objecting in a discussion within a joint committee. That is part of the debate informing a strategic plan or a local development plan for that particular area or the wider area.

The number of applications that have significant cross-boundary effects can be quite large, but the question is whether they would have significant impact on the ground. The word “significant” could be framed in clear and consistent advice that would lead to the system being speeded up. You could question whether that advice could be given in that level of direction, with a degree of consistency that would enable the planning system to continue to function and speed up, as we would all wish it to.

I return to George Eckton’s point about encouraging such discussions to be held earlier in the planning process. We are moving towards a plan-led system so, in the areas where a strategic development plan exists, I hope that there would be opportunities to ensure that discussions are held to provide a context for the decisions before a decision is made. As I said previously, I assume that the mechanism would be used sparingly and only in circumstances when, to be honest with you, there was gridlock.

Is Bill Walker happy with that?

Yes, thanks. That is good.

The petitioner raises a point about what constitutes a national interest, and asks whether the Government will provide more direction and guidance on that.

First, I will pick up on the point about early engagement and front-loading. Of course that is important; it is vital. However, there will be cases—members will all have them in their areas—in which a compromise will not be reached. People object, legitimately, because they are concerned about the environmental impact of a range of facilities and infrastructure, which we all know that we need, and they are very worried about the impact on their quality of life. I understand that, so we have to be realistic about the situation.

On Mr Griffin’s point, the national interest does, of course, change. When we took through the 2006 act, the notification direction included developments that were contrary to the local development plan. There was a lot of concern among local authorities about the extra cost and bureaucracy that that would involve. As a Government department, we were quite nervous about the number of cases that would come to us.

In 2007, the new Government took a different approach to local authorities and the national interest was defined much more narrowly in terms of what was a genuine interest for the Government. The notification direction comprises three things. First, there are local authority interest cases. There has been suspicion—largely unjustified, I think—about local authorities taking decisions on land or property that they own and, for example, having cases referred to full committees. For example, I think that there is a sign on the Telford bridge at Dunkeld, and that is not really the way that these things should work. I am aware of a few cases in which there is a perception that local authorities’ planning judgment was influenced by commercial considerations.

Secondly, there are cases in which a Government agency—let us be clear that these are Government agencies—thinks that there is an issue. Local authorities are entitled to take a decision that is contrary to the development plan and, as long as they go through a proper process of consultation, engagement and consideration, ministers have been clear that they do not believe that that should automatically be notified. However, if there is an objection from a Government agency, it should be. Having said that, notification does not actually mean call-in. We would sometimes not be comfortable with the objection and with putting the matter to a public inquiry.

The third thing is around opencast coal close to communities in which there are substantial on-going concerns about the environmental and health impact of opencast working.

That is, in a way, how the national interest has been defined. As Ms Davidson said when she talked about the national planning framework, there is also a series of national developments in which Government would have an interest. By and large, it is not about the Government trying to second-guess a local authority’s decision; it is about ensuring that a proper process is in place that allows a fair and transparent decision to be made.

As no other members have questions on the petition, I thank the witnesses for their evidence. The committee will consider at a future meeting the evidence that we have been given and the evidence that was given to the Public Petitions Committee. I suspend the meeting briefly to allow the witnesses to leave.

11:44 Meeting suspended.

11:44 On resuming—