Telecommunications Development
I welcome Elaine Smith, who has joined us for agenda item 3. A number of members have expressed an interest in telecommunications development, and Cathy Craigie and others have been declaring their views on the matter. It is certainly a topical issue. The committee identified telecommunications development as one of its priority considerations and a briefing note on the subject was prepared by the Parliament's information centre. Members have a copy of that and will appreciate that it is a well-constructed explanation of the issues, organisations and views involved. We appreciate Stephen Curtis's work on it.
The Scottish Executive and the Convention of Scottish Local Authorities have been invited to brief the committee on the process for consideration of telecommunications development. Following our discussions with those who are submitting evidence to us today, we may wish to investigate the matter further. I suggest that, if we do that, we agree terms of reference for an inquiry and our approach to taking evidence. That, and to assess the views of the Executive and COSLA, is the purpose of what I would call the pre-investigation stage.
I invite John Gunstone, on behalf of the Scottish Executive, to rejoin us. He will brief the committee on the process for consideration of telecommunications development, the issues involved and the outcome of recent consultations. You are having a busy morning—welcome back.
I will talk about the existing planning procedures and guidance on the consideration of telecommunications development. We have to look at telecommunications against the backdrop of the Government's overall desire that the telecommunications network should be established and available to as large a part of the population as possible.
The Telecommunications Act 1984 set up the current regime for the development of the network. Organisations that we refer to as code systems operators, such as Cellnet and British Telecom, have certain rights and obligations under the act, particularly in terms of access to land. They have strong powers to get access to public and private land and, if they cannot get the access that they need, they can go to the courts, which will determine what recompense should be made to the landowner. None of that has anything to do with planning.
Within the planning system, the developers have a range of permitted development rights, the most well known of which is that telecommunications masts less than 15 metres high do not require planning applications to be made. There are about two pages of detailed information on that in the Town and Country Planning (General Permitted Development) (Scotland) Order 1992, but I will not go into that in such detail, unless the committee wants me to.
In return for the granting of those rights, some conditions have been placed on the developers. The conditions are spelled out in the licences that are granted by the Department of Trade and Industry, I think—the Scottish Executive does not issue the licences. They are required to notify planning authorities, or, in certain circumstances, Scottish Natural Heritage, of their proposals. They have to take account of the visual amenity of their work. They are required to make provision for mast sharing and to aim for a minimum number of masts. How well that works is a matter of debate. I do not know if all developers tell the local authority about everything that they propose to do.
That, in essence, is the current arrangement. I could go on at some length about the details but I think that you are more interested in the principles.
Our guidance is a 1985 circular, 25/1985, that was issued after the Telecommunications Act 1984. There have been amendments to what is and what is not permitted, but the circular remains our substantive guidance. South of the border, the Department of the Environment, Transport and the Regions has a code of practice that was prepared in consultation with local authorities and the industry. I suspect that many people who operate in Scotland will refer to that code, although it has no force in Scotland. We do not have a parallel code at the moment.
You asked what the problems are about the current procedure. I think that the committee knows what they are as well as I do: several of you have written to the minister with matters that your constituents have raised. Many members of the public write to us directly as well.
There is a great deal of public concern about masts popping up all over the place. There is concern about whether operators are going through the notification arrangements that are required of them under their licences. Perhaps local authorities will have something to say about that.
There is concern about whether planning authorities respond as well as they should to proposals from developers. Many people write to the department to say that they have been in touch with the planning authority and have been told that the situation is nothing to do with the planning authority and that they have no control of it. As I have said, developers are required to notify planning authorities and the planning authorities can make comments and observations. The developers are meant to take the concerns of the planning authority on board before going ahead with their proposals.
There is concern that the planning authorities in Scotland have less control than those in England and Wales, and, lastly, there is concern about the possible health effects of electromagnetic fields that emanate from telecommunications base stations and masts. People are concerned that those masts might be sited too close to schools, hospitals and residential areas.
That covers most, if not all, of the concerns. There might be others, but that is the situation in a nutshell.
We consulted recently because of those concerns, and with a view to consideration of whether we should change the current regime. I should remind the committee that the Department of Trade and Industry takes a great interest in anything we do, and while we are not beholden to that department regarding planning in Scotland, we will keep them informed of any proposals.
There were more than 700 consultees. We first consulted last May on four substantive issues. We asked whether we should stay with the status quo regarding masts and whether the 15 m limit was inappropriate and should be changed to 10 m or to some other height. We consulted on whether we should introduce a prior approval mechanism similar to that which is in place in England and Wales.
There were no votes in favour of the status quo. A few votes favoured reducing the threshold, but the counter-argument to that was that reduction of the height of the masts from 15 m to 10 m would only result in more masts, so that approach might not solve the problem at all. One might see less of them from one's garden, but there would be more of them around. The vast majority of responses favoured the introduction of prior approval. A substantial handful said that we should not bother with prior approval but that full planning control should be required.
We also consulted about clarifying whether extensions to existing masts, which made the structures higher than 15 m, constituted permitted development. I understand that a number of developers tried that one on. The suggestion was that we should make it clear that that is not on. There was only one vote in favour of that option and that was from a developer. The response indicated that we should make it crystal clear that a developer could not build a mast up to a height of 14.9 m one day and then come along to stick on another 6 m or 10 m the next day.
Regarding equipment housing, there are currently specific building sizes stipulated. Buildings can be up to 4 m high and up to 200 cu m in volume and still qualify for permitted development rights. We discussed whether to maintain that, to reduce it, or to introduce prior approval. The general feeling was that we should reduce the size and introduce a prior approval mechanism.
We raised the question of whether we should have a code of practice in Scotland for planning authorities, the industry and others with an interest in the process. The overwhelming view was that we should have a code of practice, planning advice note, or whatever we want to badge it as, and that we should have a number of volunteers, particularly from the industry, involved in helping to draw up that code.
We consulted again later, partly in response to that view, and partly in response to further moves by the Department of Transport, the Environment and the Regions in England. We consulted on introducing not a straightforward prior approval scheme but a two-stage scheme, whereby someone could come with an application and be told quickly whether he requires prior approval. If he had chosen a non-sensitive location and if the application was suitably sympathetic to the environment, he might be given the nod to proceed by the planning authority. Alternatively, he might be told that the application would raise public concern and was in a sensitive area and so on, and that he would need to submit full details of it and await the seeking of comments from the public before we gave him the nod or a refusal.
There was support for that, or for anything that would increase the level of control, but there was considerable disquiet about the complexity of the system. It is bureaucratic and potentially difficult to understand, in which case there is potential for abuse or misuse of the process.
There was a varied view on how long was required to make the initial determination of whether prior approval was necessary, and about how long it would take to come to a decision about the more difficult cases.
We consulted about increasing the level of control in sites of special scientific interest to that which exists under the Wildlife and Countryside Act 1981 in national scenic areas and conservation areas. A considerable majority was in favour of extending the control, as suggested.
Finally, we asked whether we should be giving clearer guidance to planning authorities and developers about the use or possible use of agreements—formal or legally binding agreements—about mast sharing. The vote was split on this one between the councils, which thought that it was generally a good idea, and the industry, which thought of lots of good technical reasons why it is not always possible or a terribly good idea to share masts. That was a fairly predictable response.
Our response to those views was declared to this committee by the Minister for Transport and the Environment a fortnight ago, when she came to answer questions on this and other matters. I believe that she listed seven points on which she had given clearance for the development department to take forward.
The first is a 42-day prior approval scheme for ground-based masts, which would allow a 42-day period during which the proposal could be advertised in the local press, at the developer's expense, I hasten to add. Residents in the area could make their opinion known to the planning authority before it came to a view about the development.
The second is a 28-day prior approval procedure for other installations: the ones on buildings and so on. Thirdly, there is clarification on the point to which I referred earlier about the height of 14.9 m being extended by 6 m. Fourthly, there will be a fairly tight reduction in the size and height of equipment housing, from 200 cu m to 90 cu m, and a height reduction from 4 m to 3 m.
Fifthly, we will extend the restriction on permitted development rights for telecommunications operations in national scenic areas and conservation areas to sites of special scientific interest. Sixthly, we will work up a Scottish code of best practice or planning advice note for the benefit of planning authorities and the industry. Lastly, we will produce advice on the use of planning agreements to encourage mast sharing.
Those matters are now in hand. The instructions have gone to solicitors and they are working on the amendments to the secondary legislation that are required to bring into effect the measures that I have outlined.
Thank you, John. I am sure that we have all been lobbied by people who are very concerned about this issue. The East Kilbride high flats residents associations have contacted me and Cathy has told me that people in other areas have been lobbying. I thank John for providing us with some of the history behind the regulations and reiterating the Executive's position on the action that it intends to take. I now open up the discussion to committee members.
I come from Fife, where for the past 18 months there has been great concern about telecommunications masts. John may have been informed about that by the solicitors of Fife Council. When I was on the council's strategic development committee, I pushed to get it to introduce a policy that would begin to address some of the issues.
I am particularly concerned that in all that John has said and in all that I have read so far there has been very little mention of the European dimension. There are references to the National Radiological Protection Board, which is considering the health and safety aspects, and to other work that is going on internationally, but there is not much about Europe. However, I understand that an expert body was established and reported, and that it later indicated that further work was needed. The body neither dismissed the health concerns nor concluded that people were definitely at risk.
I accept that health and safety is a matter reserved to the Westminster Parliament and that the developers will continue to want to take these projects forward, but I am a great believer in the Maastricht treaty, which articulates the precautionary principle. We do not seem to be applying that in this case, so that local authorities can be given unambiguous advice on how to deal with planning applications for masts. Will John comment on that?
I would prefer to group questions.
I want to reinforce what Helen has said. The Scottish Parliament information centre research note that we have been given states that Professor Sir Richard Doll has reviewed the scientific evidence on exposure to electromagnetic fields and the risk of cancer and concluded that
"there is no firm evidence that electromagnetic fields cause cancer but that there is a need for further good quality research to be carried out."
In other words, there is no evidence that they do not cause cancer either. That is what the report says.
My question relates to how, during the 42-day prior approval period, it will be advertised that masts are to be put up. I am concerned that, under current planning regulations, it seems to be sufficient to put an advert in the local paper, pin a few notices to lampposts and hope that people pick up on what is about to happen. Has any thought been given to asking developers to send letters to people who live within, say, half a mile of planned masts?
My question follows on from what Robin has just said and concerns the mechanics of the prior approval period. I, too, was concerned about advertising. The SPICe note states that
"the planning authority … would have a specified period of time in which to consider the proposal".
It goes on:
"If in either of the two stages the planning authority fails to meet these timescales, then the operator would have the right to carry out the development".
That bothers me, because it assumes that local authorities will always be able to meet the time scale. For various reasons, they may on occasion be unable to do that, and something may slip through the net.
The other aspect that bothers me slightly is the code of best practice. I would like to know what action could be taken against a local authority if the code of best practice is not adhered to, either by the authority or the developer. The convener mentioned the siting of masts next to high flats; on occasion, local authorities are paid by developers to allow properties to be used. We should have something a bit tighter than a code of best practice.
I will start with the question about the precautionary principle. However, I would preface what I am about to say by reminding the committee that I am not a representative of the health department and I would not want to comment on the quality of its research or the validity of the opinions that it has put forward. The Scottish Executive takes advice from the National Radiological Protection Board on such matters.
I understand that a few planning authorities are endeavouring to, or indeed succeeding at, implementing a precautionary principle, so that further masts on schools, for example, are being refused. Those are the most emotive cases and councils see that as the most straightforward way of responding to public pressure. I do not know whether that will be tested in court. A developer would have to press the point and perhaps bring the issue to a head.
My understanding is that the requirements in the Maastricht treaty on the precautionary principle relate to keeping things in proportion. It is all very well to take precautionary action, but it must be proportional to the risk. One of our consultation papers includes a discussion about whether a cordon sanitaire should be established around installations such as telecommunications base stations—200 m was suggested as an appropriate distance. If the NRPB tell us that, as long as the public does not go inside the fence which demarcates the area, there is no evidence of a causal link between that level of radiation and any ill effects, it would be difficult for the Executive and local authorities to say that a 200 m cordon sanitaire is proportional to the risk.
The difficulty with much of the research, as Mr Harper pointed out, is that the conclusion often seems to be that there is no evidence, but with an immediate caveat that further research is needed. The problem is that the public wants the researchers to prove the negative and I am not sure that that will ever be possible. There must be a hypothesis of the problem before the research can be directed appropriately. I am straying out of my territory and have reached thin ice, so I will end my comments on the precautionary principle there.
Mr Harper asked about the form of advertising. The details about whether a precise form needs to be specified or whether it can be left to the planning authorities will need to be thrashed out. At present, there is provision within a concept called neighbour notification. As the phrase suggests, neighbours of a proposed development are given specific notification of what is intended.
I take Robin Harper's point about requiring letters to be put through letterboxes, and about whether a radius of half a mile for that is appropriate or whether the radius should be bigger or smaller. The potential difficulty is how we know that it has been done. We already have that difficulty with neighbour notification; applicants are required to certify on their planning application forms that they have conducted the necessary neighbour notification round, but we suspect that it is not always done. We are considering tightening things up.
The idea of putting letters through letterboxes, or putting more notices on lampposts, is worth exploring. I do not know whether we would want to regulate for that and have the problem of establishing that it has been done and deciding on sanctions for cases in which it has not. It might be better to include it in the code of practice, so that developers could be exhorted to do it. Developers are always keen to tell us how open and public-spirited they wish to be, so the idea might not fall on deaf ears.
Finally, on what could be dubbed a deemed approval, which would be given if a planning authority failed to respond negatively to a development proposal under the prior approval scheme, I would have to go back to the consultation responses to spot whether that point was picked up—I do not recall it. My response at the moment is that we would have to rely on the planning authorities to ensure that they responded within the due time.
I find that worrying.
I take your point.
What about the code of best practice?
How does enforcement of a code of best practice fit into the legislation?
A code of best practice would be just that—or a planning advice note. It would not have regulatory force.
For the record, I, too, find that worrying.
I welcome this discussion. I hope that it will not be the last one, as a number of issues have been highlighted that need to be considered. I want to pick up briefly on a number of points that have been raised.
On health, and following on from what Helen said about the Maastricht precautionary principle, I understand that the Government has asked for an expert working group to be set up with NRPB. When will that group report?
My second question is on what would constitute the replacement of an existing mast. I want to clarify that the proposed guidelines will be tight enough. An example is where a developer offers to build a new mast for the police on a site on which there has been a police communications mast for many years, but shifts the position of the mast on the same piece of ground so that it is only a few metres away from someone's house. Does that count as the replacement of a mast on the same site? It seems to me that it should not, but it is not covered by the present regulations, and residents have no comeback.
I am also concerned that it is difficult to get information in advance about telephone operators proposals, as they claim that the information is commercially sensitive. I suspect that competition between phone operators will make it difficult for them to reach agreements.
I do not expect you to have all the answers, but perhaps you will pick up on some points.
We may wish to speak with the NRPB on that matter at a future date.
When will the group report?
In early 2000. John, would you like to comment on that?
You know more than I do. Early 2000 has been proposed for the publication of the report from Tessa Jowell's group, so we have a little while to wait for it.
The issue of mast replacement and what constitutes the same site must be taken up with the planning authority, not the Executive.
The anomaly is that the planning authority says that it does not have jurisdiction because of the prior approval that was given. I wanted to clarify the fact that the new proposals would not deal effectively with that anomaly.
I do not think that the proposals address that anomaly. If you would like to write to me about that case I would be happy to give written comment on it.
I will do that.
I thought that you would.
Cathy, you have done a grand job in getting that issue across.
I cannot comment because of commercial sensitivity.
The principle has now been raised and John has said that it can be examined. Is that fair to say?
I am sorry: I did not hear you.
I said that the principle has been raised, not of the actual event but of what can and may happen, and therefore that will be examined in the code of practice.
We would hope that developers already discuss their development plans with planning authorities, but I do not know to what extent that happens. The COSLA representatives may be able to shed some light on whether developers are sharing their planning proposals with planning authorities.
I thought that the biggest problem arising from the Telecommunications Act 1984 was the fact that cable operators were digging up the roads willy-nilly all over Scotland. We got over that but we now have another implication to deal with.
I want to address three issues. First, you have identified that the precautionary principle is the route that you want to take. How will you flesh that out in terms of developing a core standard around which the precautionary principle can be written? It would be dangerous if we ended up with different authorities in different parts of Scotland with different standards and different operating procedures, so we need some guidance from the Executive about how these measures can be put into effect.
My second point relates to the precautionary principle governing the positioning of new masts which, if we are being optimistic, will be in effect from the middle of 2000. What impact, if any, will that have on existing masts, some of which may have been located in inappropriate sites under the procedures that operated prior to the precautionary principle being introduced?
As a former local councillor I know that one of the problems that planning authorities face is that, given the choice between a more isolated site and a site that is closer to housing, population centres, schools and so on, operators typically proceed on a cheapness-first principle, which generally means that they locate the mast nearer to a populated site, even when an alternative, less potentially hazardous location is available.
We might want to write into the precautionary principle some kind of retrospective element in the code of guidance that advises operators to relocate existing masts, where possible, from places where they pose a potential hazard to where they pose a lesser potential hazard. Planning legislation is always about what happens next. We should examine what has already happened and determine whether there is a mechanism that we can introduce.
The third issue is the health dimension and how we address it. Perhaps that is a question for the convener rather than for John. When we discuss the health issue it would be worth meeting a health expert who can give us some information. I am conscious that there is a difference between the NRPB standard and the European standard in relation to the emission levels that are considered appropriate. We require some information on that.
After today's two presentations, the committee will discuss how it will deal with the health issue. The Parliament has a health committee with which we may want to conduct a joint investigation. We can consider health matters in this committee, but we cannot do much with the information. Let us leave the health issue until the end of the two presentations, then we can deal with it in our discussions of how we are going to proceed.
If we could work out what we wanted to say, regarding guidance on the precautionary principle, we could give such guidance. The NRPB is saying, among other things, that there is no good reason for establishing a cordon sanitaire around masts. It would be difficult for ministers to give definitive guidance and to defend the necessity of having masts at particular distances from residential areas on health or other grounds.
Is the implication that it will be left to individual planning authorities to decide on what basis the appropriate procedures might operate?
Last year, in conjunction with the Executive health department, we issued a draft paper on electromagnetic fields and planning. To an extent, that paper served only to stir up the issue; it did not solve much. That has perhaps been constructive, as we have brought the debate out. It will be some time before we find a clear way forward.
If the decree were to come out, "Thou shalt not build a mast within 50 m of a residential dwelling," what would that do to the value of a property that was already within 50 m of a mast? It would be blighted until the offending mast was moved. Questions are raised of who pays for that and how it is brought about. We are not in that position yet.
The order could be extended further than saying that there should not be a residential property within 50 m of a telecommunications mast. What about a broadcasting station? What about electricity pylons and substations? I am not an expert on electromagnetic fields, but I know that those things generate electromagnetic fields. Should one be allowed within 5 m of the microwave oven in one's kitchen? Without wanting to trivialise the matter, I point out that we are exposed to electromagnetic fields every day. As I said earlier, we must try to keep things in perspective, based on the right evidence from people who are in a position to give that information.
Convener, I want to pick you up on the point that you made about our future course of action. John indicated that there were seven areas of control in which the Executive intended to take action. Would that involve Executive action rather than legislation? Some of those areas clearly require only Executive action; no law would have to be passed to introduce a planning advice notice. Is there any requirement for legislation on those seven principles? If we were to try to exercise what our briefing note calls "full planning control", would that require legislation? If we were to try to make any regulatory system retrospective, would that also raise issues of legislation and compensation? How do you think we should proceed on this issue?
The first five proposals that are being progressed—all except the code of best practice and the preparation of advice on the use of planning agreements to encourage mast sharing—require changes to regulations at the level of secondary legislation. We can make those changes without a planning bill, as soon as our solicitors can get the work done for us.
On the question of full planning control, we could also achieve that—if we wanted it—by regulation. The effect would be to remove class 67 from the permitted development order.
The third leg of my questions was on the attempt to make a regulatory regime retrospective. Could we do that by secondary legislation?
I do not know, but I think not. Can I come back to the committee on that?
Yes.
I was interested in the consideration of full planning permission, having read some of the notes. The point was put that there are delays to operators, in terms of the prior approval mechanism, or method. Are those delays significant and did the result of the consultation that you conducted earlier in the year suggest that they would continue to be significant if we moved towards full planning control? I do not hear any arguments as to why you should not have a full planning procedure.
Is that the question, or is the question—
I want to know whether your consultations came up with real arguments as to why you should not have a full planning procedure, in terms of the delays that operators perceived. On the other hand, are the prior approval procedure delays real? What are the arguments for not moving towards full planning approval?
As I said earlier, the responses were generally along the lines that the planning authorities felt that the procedures were terribly tight. I have some sympathy for them as the planning system is under considerable pressure at the moment. If we load another chunk of case work on the planning authorities, presumably the strain will show somewhere in the system.
The developers, who obviously want decisions as quickly as possible, put the counter argument. I suppose that there may be less sympathy for them, on the ground that they could make their proposals a little earlier, perhaps, and the effect would be the same—they would get the decision when they needed it. It is a matter of which perspective one looks at the issue from.
I think I am right in saying that, technically speaking, one could always deal with a particular application within 14, 28 or 42 days, or whatever. However, there are many other things sitting on planning officials' desks at the same time and the general flow of case work has to be kept moving. The implementation of a full planning procedure would be an addition to that burden.
But would it be? Cathy said earlier that some planning authorities say that they do not have an issue with that, while others said that they do. It does not sound as if there is a clear position across Scotland as to how the procedures have been dealt with. Like Des, I was formerly a councillor and I saw the work load and how quickly, under the requirements, planning authorities were asked to deal with things. They have performance targets that are, effectively, set by the Executive, which they are meant to achieve. If we had a full planning procedure, would that not clarify the situation?
It would be a clear and simple way forward if these developments were to be brought within full planning control.
Oh, really? What is wrong with that, then?
I think that the argument is that there is no absolute requirement to apply full planning control.
We should remember the stage that we are at in our discussion. There is other advice that we can take and other organisations that we can consult. To be fair, Tavish, we could pursue that point on another day, so to speak.
Are there any other questions from committee members?
I wish to ask about the code of practice and your perception of how the codes of practice work within local authorities. I was not a councillor, but I used to work in local government. We had to pay due attention to codes of practice—otherwise, although the codes are not legislative or prescriptive, staff would find themselves in some difficulty at a later stage. What is your view on that?
That is right. I can go back to personal experience—I was a local government engineer once upon a time. Most engineering design is done to a British standard code of practice, whether it involves steel, concrete or whatever. Engineers take great comfort from the fact that they have designed something to a British standard because the chances are that their design will stand up and support the loads that it is subjected to. There may be a cheaper and more innovative solution, but that would mean deviating from the code of practice, which in turn might mean being subject to action and criticism for having done so. I suspect that planning advice notes—even if people have not done so already—can be thought of in the same way. It is very easy to defend decisions or actions if you can say that you are following what is laid down in the code of practice. By and large, planning authorities adhere to a code of practice and prefer not to depart from it.
The speakers from COSLA who are to follow may want to pick up on that point.
John, thank you very much. That was very useful and we appreciate your coming.
Mary Dinsdale, Dr Andrew Mackie and Bill Hepburn of COSLA will now join us, to brief the committee on the procedure for telecommunications development from local authorities' perspective. They will talk about the telecommunications development issues facing local authorities and local authorities' response to recent consultations and guidance on the matter.
We appreciate your coming along. I know who Mary is—Mary, could you do us a favour by introducing your colleagues?
Mary Dinsdale (Convention of Scottish Local Authorities):
On my right, I have Bill Hepburn, who is the principal planner in development and control from Highland; and on my left is Dr Andrew Mackie, who is head of analytical and scientific services from Glasgow.
Dr Andrew Mackie (Convention of Scottish Local Authorities):
Edinburgh.
Sorry, Edinburgh. [Laughter.]
I would like to provide a brief overview from COSLA's point of view, and then hand over to my colleagues to comment on their particular councils' policies.
COSLA welcomes the opportunity to provide a briefing on this issue. I would indicate at the start, however, that this is an area that we are currently investigating. We do not yet have a formal policy. We have carried out a survey of councils' policies on their own property, but it is not yet complete. The results of the survey will feed into a seminar in November that we are organising. We have invited speakers from the industry, the Scottish Executive, local authorities, the NRPB and Friends of the Earth. Members of the committee are welcome to attend, if they think it would be useful.
I had intended to cover the legislation, Government consultations and the survey, but I think that I will skip the legislation as John Gunstone has given a fairly extensive presentation. The only point that I would make is that the Town and Country Planning (General Permitted Development) (Scotland) Amendment (No.2) Order 1997 and the Telecommunications Act 1984 mean that there is both United Kingdom and Scottish legislation—it would be helpful if there were inter-relating controls.
In the review of planning procedures in Scotland relating to telecommunications equipment, councils raised some general points, including: the need for publicity of applications for third party objections to permitted development; the need for early discussion—prior to site acquisition—between the operator and the planning authority; a requirement for site sharing by operators to minimise the number of sites; and the need for details of different mast designs to be provided.
One council highlighted the fact that the planning authority could request changes to appearance, landscaping and siting of masts, but that, although operators were expected to respond positively, they were not required to amend proposals on the basis of objections from the local authority. The council is seen as a consultee rather than as a decision maker. Another council thought that the 28-day period should be extended to two months to allow for consultation, advertising and reporting to committee.
The proposed code of best practice was generally welcomed. The code should include details of all operators and the areas covered by their licences, and a clear complaints procedure to cover, for example, complaints about work on private property that was outwith the scope of planning legislation.
The second consultation that I will comment on is the draft circular on land use planning and electromagnetic fields, which provides guidance to councils in determining applications in the vicinity of power lines or base stations. The circular advises that operators require to comply with health and safety legislation and that there is no reason for planning authorities to take health and safety matters into account. It was pointed out that paragraph 21 states:
"The courts have held that any genuine public perception of danger is a valid planning consideration, although the weight to be given to this will be a matter for the body determining the application taking into account the particular facts of the case".
One council commented that the draft circular should give scope for refusals, where expert advice is inconclusive. The general view was that the draft provides little practical guidance on how land use planning should take issues arising from EMFs into account.
On the results from the survey that we carried out, we received 18 responses on councils' policies in relation to applications for sites in their ownership. Eight councils have adopted the precautionary principle or have put in place a temporary moratorium regarding applications for sites on council-owned land and buildings, particularly schools and education premises. A further six councils are reviewing their policies. Two councils have carried out monitoring of electric fields in areas where masts are close to primary schools and nurseries—the findings were well below the levels recommended by Friends of the Earth. Two councils have not adopted specific policies on the issue.
The data from the survey will feed into our seminar in November. COSLA is aware that guidance on telecommunications planning policy in relation to health and safety is contained in Scottish Office development department circular 25/85 and that the NRPB has stated that there is no firm evidence that health risks are associated with EMFs. The consistent message from councils is that they are mindful of public anxiety and until studies of the long-term effects are available and conclusively report that there are no risks, precautionary principles will continue to operate on council-owned land and premises.
If there are specific issues that I have not covered, we can prepare further evidence. I will now hand over to my colleague.
Bill Hepburn (Convention of Scottish Local Authorities):
I come from Highland Council, which covers a large geographical area—as I am sure most of the committee will know. We have had considerable experience in dealing with new telecommunications apparatus. There has been a rapid expansion, owing to the evolution of the industry and because Vodafone and Cellnet have entered into an agreement with Highlands and Islands Enterprise. With the assistance of European money, they are establishing wide networks to the most remote parts of the Highlands and Islands. By the nature of the technology, this requires a lot of installations.
Since 1996, when the process began, we have had more than 250 notifications, of which only 10 per cent have been planning applications. The rest have been permitted development notifications. As John Gunstone said, they can be fairly significant. For example, the diagram I have with me shows a 15 m mast—approximately 50 ft. It will significantly affect the environment. There have been some controversies, generally on orthodox planning issues of amenity, but a health issue has emerged and is rumbling on. The council's policy is to support telecommunications. It supports the initiative of Vodafone, Cellnet and the development agencies in introducing telecommunications to remote areas as it will assist social and economic development in an area that is bigger than Wales but has a population of 250,000.
Because of the increasing number of controversies, the council instigated an informal consultation procedure. We consult local councillors, community councils, Scottish Natural Heritage and anyone else whom we think has a particular concern about a notification that we receive. We get only 28 days to deal with that notification, and the procedure is entirely inadequate, although it does sift out some problems.
We have had our successes, where we have been able to advise operators that they should try something else, but we have had our failures too. The operators will have investigated alternatives and they will get to the end of the line and decide that what they wanted in the first place was right. At that point the operator will go ahead with the development, despite the wishes of the council or anyone else.
Since 1996, the council has made various representations to the Scottish Office and latterly the Scottish Executive. Highland Council's view is that permitted development, as it is now constituted, should require full planning permission. There is no ambiguity about that whatsoever. Permitted development should be reduced to an insignificant amount—and those remarks are without prejudice to any health issue that might arise from the use of smaller scale apparatus.
I felt that it was not clear from the Scottish Executive paper that these masts occur on various scales, from large installations that include many operators, through a continuum to very small items. You will see them here in Edinburgh. Micro-cells are being developed that, in planning terms, are de minimis. They are no more obvious than burglar alarms or light fitments on the side of buildings. The problem of scale must be taken into account for planning and in health terms.
Highland Council's view on prior notification is that it is an entirely unsatisfactory hybrid process, bureaucratic, and procedurally not helpful to either the public or the planning authority or, I would argue, to a developer. If a developer is faced with a full planning application, it has a proper pathway to a decision, whether through the council or the Scottish Executive. I was disheartened by what John Gunstone said this morning, because decisions appear to have been taken already. As a practising planner, I believe that there is no advantage whatsoever in undertaking a prior notification procedure, or to the time scales that that will involve, as compared with dealing with a planning application in the normal way.
John Gunstone commented on neighbour notification. One of the features of any existing prior notification arrangements—for example for agricultural buildings—is that no neighbour notification is required. The public do not understand that they can get a 15 m mast on their doorstep without notification, but that they will be notified if their next-door neighbour wants to build on a front porch. That inconsistency must be tackled and I am not confident that the prior notification procedure as described will do that.
A full planning application is by far the best way forward. It would place no greater burden on planning authorities than the prior notification procedure. In Highland Council, prior notification would raise even more difficulties in terms of the staff and the time that we would need to give it. Also, we would give more or less full planning consideration to those issues but we would not get a planning fee. That fiscal issue must be taken into account.
The council is aware of persistent expressions of public concern on health issues. For our part, we have adopted an interim policy which is precautionary in a sense: whether we would allow these installations on sensitive properties—schools or old people's homes or whatever—is subject to formal council consideration. That policy is pending further guidance from Government or the National Radiological Protection Board, which may be long in coming and inconclusive.
Thank you very much. Dr Mackie.
I have a few supplementary remarks regarding the precautionary principle and the difficulties that councils face in responding to public perception and opinion. Those difficulties arise partly because the councils, as we have heard, do not have the planning powers that the public perceive them to have. Further, the councils own large numbers of properties and, particularly in urban areas, telecommunications operators consider those properties to be ideal sites. Councils also have the additional responsibility of considering the situation with regard to their tenants, schoolchildren, older people and so on.
The precautionary principle, which has been mentioned quite a lot this morning, is a very ill-defined statement. It does not apply to telecommunications alone, but was incorporated into the Maastricht treaty to apply to anything where there could be concern about a health risk or some other aspect of life. It is being developed, in a piecemeal fashion, to apply to telecommunications activities and, in many cases, it is being interpreted as meaning either a ban or a moratorium on the erection of masts in certain locations. That may not be the most appropriate way forward; therefore there is a need for further guidance.
I will give an example. If, after a precautionary principle was adopted, it was decided not to erect a mast on top of a school, the telecommunications director may decide to erect the mast on private land adjacent to that school. As a consequence, the exposure—perceived or otherwise—that the children in the school would receive will be the same whether the mast is on the school or adjacent to it.
The precautionary principle needs to be fleshed out in a great deal more detail. Many aspects—such as the configuration of the operator's particular antenna at a given location, the power rating, the likely levels of emissions at different points at ground level or in different locations on adjacent buildings—need to be brought into a code of practice. The code could assist local authorities to evaluate individual sites, to determine whether they present a potential risk to the community, and to make a judgment based on that evaluation.
At present, because there is a lack of information, local authorities take different views, some in response to public opinion and others in response to perceived scientific information. The scientific information is very complex and by no means clear-cut and, in the short to medium term, I do not think that it will be. To expect councils to make scientific judgment on health issues alone is beyond their resources and, in many cases, beyond their expertise.
Thank you very much. We will revisit those issues but, in the meantime, are there any questions for the COSLA representatives?
I have an observation rather than a question. It has been very helpful to hear both sides of the argument this morning and I appreciate everyone's work and effort. The presentations were very interesting. I am not opposed to mobile phones—I love new technology—but I want the sort of approach that has been illustrated this morning to be adopted.
If there are no further questions, it remains to me to thank our visitors very much. As I said, we will probably investigate this matter further. I am interested in the seminar that was mentioned, as I am sure other committee members will be. We look forward to receiving details of it.
Can I have a general view from the committee on whether we wish to proceed further with this matter? I take it from the level of questioning and interest that the answer is yes. We plan to have further briefings on the matter. We should take cognisance of the COSLA seminar, which will bring together other bodies, and we can also call people to tell the committee their views. It may be appropriate to invite the NRPB, the industry itself, Friends of the Earth, who have been fairly vocal on the matter, and other organisations that may have a view.
On health, we could proceed in two ways. We could hear evidence here but not take direct action on the information that we receive. Alternatively, we could work jointly with the Health and Community Care Committee. Those are the parameters. I am not saying that that is what we have to do, but I wanted to give you a flavour of the possibilities.
I support your suggestions, which I think are first class. I wonder whether the committee clerks could find out more about the work of the European experts. If necessary, we could ask a representative from that expert body to give evidence to the committee. I do not think that the NRPB is the only organisation in the system and, indeed, the briefing note indicates others.
I agree that the NRPB is one of the most important groups that we could talk to besides the industry. Could you clarify how our work would correlate to that of the health committee? If we take evidence from the NRPB, would the health committee want us to do that jointly? What would the mechanism be?
I would need to discuss the matter with the Convener of the Health and Community Care Committee to establish whether that approach would be welcomed. We are all under different pressures. This committee has a huge work load, and it would understandable if other committees wanted to stick to their plans. If it cannot be done because of the pressure of work on that committee, I suggest that we revert to plan B, to bring witnesses to this committee only. We would be limited in the action that we could take, but we could refer the matter back to the health committee or to the floor of the chamber.
In summary, our best course of action would be to conduct a joint investigation with the health committee. If that committee cannot assist us, we shall have to do it ourselves and, depending on the results, deflect the matter to other parts of the Parliament.
I have a slight reservation about going down the route of endless joint investigations. It could be argued that the Social Inclusion, Housing and Voluntary Sector Committee should be involved in every possible investigation, as its remit covers everything, and that this committee, as an environment committee, could get involved in housing issues. It would be helpful if committee conveners could agree early on about how they intend to play that issue.
I do not think that we should be too worried about taking a bit of health evidence in relation to something that we are pursuing as an area of interest of our own. If that suits our work plan, that seems fine to me. We should notify the health committee that that is what we are doing, but I would prefer not to end up in a situation in which the two committees take joint evidence as a routine mechanism. That could be quite clumsy, so we need some protocol to allow us to maintain the integrity of inquiries. As we evolve, we can work something out in practice.
There is some difficulty in establishing the role and remit of this committee and whether the scope of our inquiries should be confined to planning regulations and local authority involvement and processes. If we want to branch out into health issues, we should take advice on that. Within the parameters and remit of the committee, we can quite happily investigate the roles of planning authorities, advice notes from the Scottish Executive, international advice and so on, but we cannot get heavily involved in health issues.
Where do members think that we should expend our energies: simply on the processes, regulations and advisory aspects outlined by COSLA and by the Scottish Executive, or on joint investigations with other committees?
I am concerned about the planning regulations. COSLA has illustrated a need for full planning control to be considered. On the other hand, the Executive is clearly moving in a different direction. If we are to address this issue, we must do so quickly because money is being spent on solicitors.
You should discuss the point about health with your colleagues in the conveners group, Andy, but there is no reason why you could not set up a smaller group made up of a small number of members from each committee to do work on that aspect. I think that we should pursue the other issues that have been raised this morning as they are within our remit.
I would be inclined to stay within the remit but it is perfectly legitimate for us to consider the health aspects of the matter, as long as we clear it with the Health and Community Care Committee. What is its work load? That committee might want to consider the issue in conjunction with us, if only for the benefit of witnesses who we will want to bring before us. If that committee does not have the issue in its programme—we should all be alert to the burdens on committees' programmes—we should feel entitled to examine aspects of health.
I agree with Tavish, though, that our priority should be matters that are within our remit.
Consensus is about to break out, I think.
I support what has been said already. In order to take action in the short term, we should investigate the issues that relate to planning control. We have heard that a Government report will deal with the health implications of the issue and we should take that into account. We might want to pose some questions that could be asked during that investigation. However, that does not stop us doing something in this committee as long as we notify the Health and Community Care Committee. In the short term, though, our focus should be on what we can achieve in terms of planning regulations.
Consensus has indeed broken out.
It is necessary for this committee to have some background on the health issue but not to get too hung up on it. Information about the health aspect could inform our decisions as to how regulatory the planning regulations should be.
That makes my job easier. We have a broad consensus that that is how we will proceed. We will build our decision into our work programme.