Official Report 289KB pdf
I welcome members of the press and the public back to the eighth meeting of the Transport and the Environment Committee. We have been discussing other matters since 8.50 am, but we are pleased to get to the meat of today's events, which is oral evidence on the National Parks (Scotland) Bill.
Thank you. My statement will be very short. I am aware that Scottish Natural Heritage has had a lot of time to state its views on national parks, so all I will do now is summarise our involvement to give some background to the committee.
Can we presume that SNH is content with the definition of national parks that is set out in the bill?
Do you mean the definition in section 1?
Yes.
We commented on some of the purposes of the national parks that are set out in section 1. We think that one of the purposes might be better phrased, but we are generally content that the principles that we proposed for the purposes of national parks are reflected in that section.
We will come to that.
What is proposed is probably different from the majority of national parks in the world. However, in Europe, where national parks are in heavily populated countries, the recognition has grown that regarding national parks as isolated, protected and independent from what is happening in the rest of the community and the rest of the country does not work.
Several organisations have suggested to us—I have asked the minister about this several times—that the phrasing of section 8(6) is not strong enough and that the implementation of the Sandford principle requires the conservation principle to prevail rather than carry "greater weight". Does SNH have a view on that?
As you may have read, we have a view on the phrasing of the balancing duty. We are keen that there should be such a duty for national parks, as it is intended that they should be areas of the highest natural heritage value and, therefore, on balance, that objective should be favoured.
To summarise, you would like something slightly stronger than "greater weight" but not a lot stronger.
That is correct. We would also like a slightly different balance than that which is in subsection (3)(a) of section 1.
Would it be fair to say that, while you want something stronger than "greater weight", you are conscious of the fact that, in certain areas of the national park, greater weight should have a sense of overwhelming importance? An area where that might be the case would be the central area of the Cairngorms. I am sure that you would be more amenable to economic and social development on the fringes of the national park such as the built areas.
That is entirely right and lies behind what we are saying about zonation. If the areas are large and have people living in them, there cannot be a blanket proscription. We would expect the park plan to deliver a balance. As I said before, existing designations and legislation tip the balance in favour of conservation in some areas.
In your evidence, you welcome the emphasis on collective achievement but suggest that that overarching consideration would be better if it were directly attached to the four aims of section 1. Would you like to say anything specific about that?
Our opinions have evolved through consideration of the two drafts of the bill that we have seen. It would help if the aims of the park were addressed at the beginning of the bill rather than in section 8(6). The balancing clause—what is sometimes called the Sandford principle—could be applied at that point as well. Along with that, there should be a duty on all public bodies to support the aims of the park. That is the sort of structure that exists in the Environment Act 1995 for English and Welsh national parks.
You suggest that all relevant bodies should be required actively to seek to meet all the proposed aims wherever possible. How do you define relevant bodies? Are we talking about public bodies, private bodies or informal bodies?
It would be difficult to list all the relevant bodies. I might get Peter Rawcliffe to remind me about the details of the Environment Act 1995 but I think that it talks about relevant bodies. We had in mind public bodies but we also raised a question about whether some duty could be placed on the public utilities, which are a major influence on the landscape in some areas, on issues such as water abstraction.
Would you like that definition to be included in the bill?
We would like a slightly stronger duty to be placed on those relevant bodies. At the moment, there is a "have regard to" section in the bill, and we have doubts about whether that is quite strong enough to do what we proposed in our original advice. We would like wording that means that public bodies are encouraged to do something positive to help, rather than saying, "We've had regard to it and we're doing our best—honest."
Are you saying that the wording should be more directly linked to the core aims for the area, as set out in section 1(3)?
Your submission says that
That would link them to the aims of the park. Our proposed wording says that a public body
It is slightly stronger.
We understand that the parliamentary draftsman has some problems with that wording, but we would still like him to try to make it a bit more positive.
Are there any other means by which the Government could ensure that UK bodies take the approach that you have outlined?
UK bodies are different. For Scottish bodies, it is fairly clear that either ministers could put something like that in the bill or could direct the Scottish bodies. I am not quite so clear about what they can do in terms of UK bodies. It would be odd, however, if there were an inconsistency that meant that UK bodies in England and Wales were obliged, under the Environment Act 1995, to support the aims of the national parks, but had no such obligations in Scotland. That is a problem for the Scottish Executive to consider, but we would be concerned if there were any disparity between Scotland and England in that regard.
To your knowledge, does the Ministry of Defence have to comply in England and Wales?
My reading of the Environment Act 1995, which refers to any minister of the crown and any public body, is that that definition includes the Ministry of Defence.
It does not, however, cover the utilities question that you mentioned.
The act also includes any statutory undertaker in its definition of a public body, and that would include public utilities.
I would like you to clarify what you said in the consultation exercise about creating a safeguard by establishing a role for Parliament or for a parliamentary committee to consider a designation order. Did you mean that statute or policy would provide for Parliament to be consulted prior to the formal laying of the order before it and, if so, do you have a view on the time scale and on whether people outside Parliament should have the opportunity to comment on a designation order prior to its being laid?
We felt there was some concern about proper scrutiny of the secondary legislation. If it is possible for something more to be done on that, it seems to us reasonable to ask a parliamentary committee to scrutinise the designation order at a final stage. I am not sure what distinction you are making between statute and policy.
You say "either in statute or policy". Do you have a view on the preferable route?
I do not think that we do; it could be either. It is for Parliament to decide what degree of scrutiny is needed as a safeguard.
I have a supplementary question on consultation. The paragraph in your submission on further consultation through a relevant committee, which might well be us, suggests that you envisage that consultation as only on national park boundaries.
To clarify the paragraph where we seem to be referring only to boundaries, we did not mean only boundaries, but I can see that it might be read that way.
Thank you. That was useful extra clarification. A lot of submissions have raised concerns over the adequacy of transferring existing powers under the Civic Government (Scotland) Act 1982. They have also raised the desirability of having self-contained and comprehensive byelaw powers that were specific to the national park authority. What are your views on that?
We would be concerned about simply transferring the powers of the Civic Government (Scotland) Act 1982 to national park authorities. During the almost 20 years since that act was put in place, it has been clear that there are problems with some of its powers. Those problems could be sorted out now. Particularly in relation to Loch Lomond, it has been brought to our attention that the powers of the act in relation to water-borne activities apply only to pleasure craft. Questions as to what is and is not a pleasure craft could be sorted out. It has also been pointed out that the powers apply only within 1,000 m of the shore. If we considered the longer term, we would wonder why we needed that kind of restriction on the byelaw powers. Rather than simply importing the 1982 powers, it might be more sensible to give national park authorities their own byelaw powers.
Do you think that your points could be covered by giving national park authorities specific powers to create their own byelaws?
Yes, by giving them their own byelaw powers and not tying them too closely to the 1982 act.
You talk about having the means to influence. Are you convinced that national park authorities will have sufficient means to influence the general activities of local authorities, public bodies, owners, users and managers of land and water, within the provisions that are set out in the bill?
In general, yes. We have been considering this bill, and considering what the enabling legislation or the designation order might say. We have also been considering the powers that ministers have to offer guidance through policy and procedure guidance notes. Those are all ways in which the national park authority can be given an influential role.
It is important to emphasise that part of the plan and the issue that we touched on earlier about the strength of the duty on other public bodies in implementing and positively contributing to a park plan.
You mentioned the power of last resort. Could you expand on how that might be built into the bill?
Last-resort powers are difficult because they are the powers that one hopes never to use. We recognise that there is considerable apprehension about any public body having last-resort powers and the way in which those can be exercised. However, there is an argument for a last-resort power, particularly in the case of poor stewardship in the management of land. In the Cairngorms, for example, there are very large areas under private ownership. Although unlikely, it is quite possible for a wealthy private owner simply to wish to have nothing to do with a national park whatsoever, and it will not be possible to influence him through incentives. If that owner was managing his land so badly that it affected the appearance of the countryside, its attraction to visitors, its amenity and recreational value, and raised access issues, we would need to do something about that.
Do you have any views on whether the Government's future decisions on land reform and access will affect matters that are already included in the National Parks (Scotland) Bill?
They could. One of the difficulties that we have in giving advice on the National Parks (Scotland) Bill is that we know that there are other bills that will influence the issues. One would have to keep in mind what is happening with those pieces of legislation. For example, the land reform bill could certainly affect stewardship of land and, therefore, it could affect the extent to which the national park authority may need to influence that issue. The legislation on access could have a big influence over byelaws and, if it is to address access to water as well as access to land, that will change the committee's recommendations.
Before we move on from the last-resort issue, you mentioned the checks that could exist—that is, reference to the minister and orders—which is an interesting area. Are there any international examples of how checks and balances are used elsewhere?
The example that I know best is that of the nature conservation order, with which SNH is involved. We apply to the minister to make the order, so that creates a check, as we cannot simply impose an order ourselves. That is followed by an appeal process and an inquiry process, which are standard checks in such orders, before an order is confirmed.
We have talked about access. Do you think that the bill adequately provides for powers for the park authority to regulate traffic and to designate, or redesignate, footpaths?
I will pass that question to Peter.
At a general level, the bill gives the park authority existing powers that are available to most local authorities. However, access legislation is being introduced because there are concerns about the adequacy of those measures. Therefore, while we expect the park authority to inherit many of the provisions of the access legislation, we have yet to see that legislation, so we cannot comment on whether it will be adequate.
I think that you partially answered this question already but, with respect to powers over public bodies and private statutory undertakers, you note that the operations of many of those bodies lie outwith normal planning control. What suggestions do you have for clarifying the legislation to ensure that the national park authority has adequate influence over those bodies? Would you recommend any changes to the legislation?
One obvious suggestion, on which we have touched already, is the inclusion in the legislation of the term "statutory undertaker", which is absent at present, although it features in the Environment Act 1995. There is reference to some of the legislation on statutory undertakers in schedule 5, but that establishes consultee arrangements for the national park authority.
By and large, we think that the strengthening of the "have regard to" power would result in those bodies coming under a duty to support the national park authority generally. We do not see that as a model by which the national park authority is able to lay down the law to other public bodies—that is not the sort of model that we were working on. Our model was to provide clear encouragement in the legislation for co-operation and for an integration of policies. Therefore, the drawing up of the park plan would enable all those bodies to co-operate. The legislation would give them a bit of encouragement to do so, through the rewording of the "have regard to" section.
I have a minor question. Would your response to the last question include the Crown Estate? In the submission to the Executive that the Crown Estate made through its solicitors, the Crown Estate says that it
Section 30 of the bill now binds the Crown Estate, which is important because of its interests as a landowner. For example, the Glenlivet estate in the Cairngorms is clearly a Crown Estate asset.
In his response to the question of footpath designation and redesignation, Peter Rawcliffe seemed to be quite comfortable with the current situation. However, as it has been suggested that we do not assume powers in this area, are we absolutely convinced that the issue will be dealt with by other legislation, particularly on land reform?
We are comfortable with the situation inasmuch as the issue will be partly resolved under the designation order. Some of the powers concerning footpaths are planning authority powers, and there is a safeguard in that such powers would be specified for the national park body in the designation orders.
We will now move on to the issue of planning matters.
I have a few questions about the planning matters section in SNH's written submission. Many organisations have raised concerns in their submissions about the separation of planning powers. However, you have suggested that the planning regime should vary according to the national park area, which presumably means that you envisage the separation of planning powers in some areas. Could you expand on that? Furthermore, will you give your reaction to the concerns that a number of people, particularly in the planning world, have raised about the practicality of separating out the different tiers of planning?
I will start at the more general level of what we are trying to achieve, then I will address the question whether the bill achieves that and is practical.
Can you envisage a situation in which the local plan and the structure plan are separable?
Yes. It has been suggested that it might not be sensible to see national parks as structure plan areas in their own right, because of the many issues and the size of the areas that are covered by structure plans. Our assumption has been that it is not sensible to think of national park authorities as structure plan authorities, but it is credible to think of them as local plan authorities, so that could be separated.
Local plan areas tend to have a distinct community of interest, following settlement patterns and routes of communication. I appreciate that you are not bound by the indicative boundaries but, to take the example of Balloch, which at the moment is contained within the indicative area for Loch Lomond, it may more logically belong with Alexandria, Renton, Bonhill and Dumbarton rather than with Aberfoyle and Glendochart, areas that are quite distant from it.
I would not disagree with the case you have made for Balloch, but that reinforces the argument for flexibility. There is no one size fits every situation here—the area must be looked at in detail.
But you looked at the area and have come up with the view that Ian just repeated, that for the Loch Lomond and Trossachs area you see it as appropriate that the national plan authority should be the development control authority and therefore the local plan authority. You have not followed that in Cairngorm and, by implication, do not think it is appropriate in the unnamed third national park either. You have singled out this area.
Detach is a rather odd word to use in the sense that the planning function of a park that assumes development control and the local plan function would have to comprise a majority of local elected members, so you would not be detaching the planning function from the community you are talking about. Whenever lines are drawn on a map you can argue about the areas that should be included. The bit of Balloch that is currently included is fairly small and does not have a large resident population. You could argue that its character and employment, in boat yards for example, looks towards Loch Lomond and not Alexandria. There are arguments for and against what you have said.
We need to consider whether the national park authority would be planning in isolation from the other local plans. I do not think that it would. If you think about the process by which a plan for the area might be drawn up, given the local authority role in relation to the park authority, there is a fairly close connection. We have speculated on their sharing planning officials and so on to ensure that close connection. It is therefore unlikely that the national park authority will plan for Balloch without knowing what is happening in the local plans immediately adjacent to it.
I was using Balloch as an example rather than as a critical focal point for the whole debate. We could turn your argument on its head, however. The Royal Town Planning Institute or the Scottish Society of Directors of Planning—I cannot remember which—argued that, although planning is divided among a number of authorities and the plans may not look coherent, when one looks beyond the superficial aspects one can see that local authorities talk to one another and submit their plans to the Scottish Executive. The overall strategies and themes of the plans are remarkably similar for the affected areas. The witnesses felt that there was therefore no need to give planning powers to the national park authorities if the existing plans are relatively coherent.
It is different because of the extent to which exercise of planning powers is seen to be a key aspect of managing the area. There is also a question as to whether a national park authority could effectively influence what is happening in Loch Lomond and the Trossachs without having development control powers.
You began by saying that you did not want the national plan authorities to become bogged down in development control. Now you are telling us that you want development control powers in precisely the area in which development control is likely to produce a large volume of work.
Our concern was about not getting bogged down in development control unnecessarily. Perhaps I should have made that qualification.
So you do not mind being bogged down when it is necessary?
If it is necessary, it is necessary, whether one gets bogged down in it or not. The distinction that we made in relation to the Cairngorms arises from the danger that development control issues could dominate. In terms of the overall issues that are relevant to the Cairngorms, development control does not seem to be the key issue. There does not seem to be a need to transfer that power to that national park authority.
It is not fair to frame this point as a question; it is just a pertinent observation. Local plans are usually drawn up and development control is usually exercised by elected bodies. That is a consideration that would have to be taken into account.
I hope that we do not get bogged down in my few short questions. Some of the points that I am going to raise concern matters that you have already touched on, and I shall try not to invite a repetition of previous answers.
We are talking about only those bodies that we have described as the relevant authorities, which are essentially public bodies and statutory undertakers. We are not talking about extending the duty to private individuals or owners.
In your submission you have suggested an alternative wording. If your suggestion was not taken up, and the wording was left as it is, what would be the effect?
We are concerned that the "have regard to" wording is not strong enough. A public body would not have to do anything positive to support the national park or its aims, provided that it could argue that it had had regard to those aims.
Do you think that it is critical that that section be strengthened?
Yes, we think it important.
You also recommend a statutory provision for the review of national park plans, but you have not specified a time scale. What was your rationale, and do you think that there is an optimum review time?
Experience tells us that management planning for an area is as much about the process of planning as about the end product. If you set a timetable in legislation, the timetable becomes a preoccupation, and we would prefer the emphasis to be on the process. Government would have to offer guidance on whether a review should be, for example, every seven years or every 10 years. That would depend on the nature of the park plan, which may vary dramatically between parks.
You recommend a general duty to keep plans up to date. Is there not a danger that, without strong guidance, plans would drift and not be kept up to date? What do you think would be a suitable time scale for reviews?
We have issued advice that is based primarily on experience in England and Wales. The figure that we had in mind was about seven years. However, we have deliberately held back from recommending a figure, because that would come to dominate proceedings.
The last-resort powers have already been covered, and I do not want to repeat questions that have already been asked. How would you feel if a last-resort power for the national park authority was not included in the bill?
That is not a dying-in-ditches issue. Our advice is that such a power is justified and that, on balance, it is better to have it available in case of emergencies. It is about the degree of risk; it is not about absolutes or principles.
Back in 1999, your agency made an estimate of what funding would be necessary for the national parks. Your submission states that consideration should be given to how much of the money should be new money rather than existing funds. Do you have a further view on that?
We have not taken the costings any further. In 1999, we felt that we had to produce a guide, which is what we tried to do. We examined costs of national parks in England and Wales, regional parks in Scotland and came up with figures that we still think are in the right order of magnitude.
Although the bill does not state the sources of funding, the minister has confirmed that the money will be national funding straight from the Executive. As Scottish block funding is fixed, how would your agency view some of its funds being taken away to fund initiatives within the park that you are not involved in? For example, how would you feel about some of your funding being diverted to local authorities for initiatives within the national park?
We must keep an open mind on that issue. In our analysis, we considered the total costs and where we thought the national park was substituting for existing expenditure—that is money that existing agencies are already paying but that will be paid through the national park authority. That assumption includes expenditure that SNH is undertaking at the moment—perhaps our grant aid in the national park areas, our funding of ranger services or whatever. I do not think that we can be too precious about saying that that must be substituted by new money. Our realistic expectation would be that that money might be transferred to a national park authority, which would undertake those functions.
You mentioned the development of a specific support scheme. How do you think that that should be approached? For example, should it be done through legislation?
I am not sure that there would have to be legislation for a support scheme. The key issues include the agriculture industry's contribution to the general appearance and attractiveness of the area, the natural and cultural heritage and agri-environment schemes.
Would that be your response to the concerns of others, such as the National Farmers Union and the Landowners Federation, that doing this would divert money from other areas of need?
That could happen if the overall funds for agri-environment were not increased. However, with another hat on, SNH would argue that agri-environment support in Scotland compared with support in most parts of Europe is a bit disappointing. Perhaps the issue is not about spreading support more thinly, but about seeing what we can do to increase it. I must confess that I am not up to date with the debates on modulation, but we have also suggested that that route might be used to target funds in these areas.
Do members have questions on marine national parks?
Section 29 of the bill says:
Our comment on section 8(2)(d) represents a question. We do not know the answer. We look to the Scottish Executive to provide assurances about the type of powers needed and the extent to which they could be applied. As you mentioned, there is an issue about the scale of powers that could be transferred simply in secondary legislation under such a catch-all measure. We are genuinely asking what size of powers could be transferred. If our three bullet points do not illustrate the sort of powers that section 8(2)(d) could transfer, further consideration should be given to whether the primary legislation should incorporate those powers.
Does that explain why marine national parks were not included in the first run-through of the national parks issue? Did that reflect SNH's thinking at the time that other issues needed to be addressed relating to the sea, not least European fisheries legislation and regulating orders?
Marine national parks have moved up the agenda considerably since we started the process. We have to admit that, when we started, we probably had not considered them in great depth. Our approach was to say, "We are not really looking at this at the moment because we are being driven by Cairngorms and Loch Lomond." However, in principle it seems sensible to have a general provision for the creation of marine national parks. As the debate has gone on, marine national parks have continued to be a serious and topical issue. The submission represents our consideration of the sorts of powers that a marine national park should have. It is a development from the position in 1999.
I agree that it is a development from where you were in 1999. It is also a development in terms of the bill. The consultation exercises on national parks on land are detailed, but those that would need to be carried out for areas on sea, or partially on sea, might have to be different. The Executive has received more than 300 responses, which, as far as I can see in the compendium, do not include many fishing organisations or other organisations that would have a considerable interest. Have you put any thought into that matter?
No detailed thought has gone into that, but I accept in principle that the consultation list for a potential marine national park would have to include fisheries organisations. The list of key organisations that would have to be consulted would be different from those that have been consulted on Loch Lomond and the Cairngorms. Is the matter sufficiently different that it would be a concern if it were left to secondary legislation? I do not think that I can answer that question, as it requires a judgment about what it is comfortable to leave to secondary legislation.
This refers to the questions that my colleagues have asked about secondary legislation as opposed to primary legislation. Some of the representations about land national parks have expressed concerns about the process that is being established. It could be argued that those concerns would be greater for marine national parks, which I agree with in principle, but we have to get them right. Is there an SNH view about whether marine national parks should be addressed separately in primary legislation?
There is not an SNH view on that. Our assumption so far has been that it would be nice for the bill to include a general recognition that the provisions could apply to marine areas. The implication for the bill as it stands is that, although such a recognition would be fine, the national park authority would have no great powers in relation to marine areas. Therefore, further primary or secondary legislation might be needed to give it those powers.
I apologise for revisiting an issue, but I did not have the chance to ask about it. Cathy Jamieson asked about the statutory duty on landowners to implement the national park plan, which was your original advice. On page 5 of your submission, you say that you are content that the bill makes no provision on that. What was the thought process that led you from one position to the other?
We accepted that a duty compelling all landowners—whether they be owners of large estates or of small farms—to do something that no landowner outside a national park was compelled to do would be unfair.
Based on earlier comments on incentives, however, that may need to be underpinned by the power of last resort.
That comes into it. That is the extreme backstop if there is a problem of sufficient magnitude that it warrants the use of that kind of power.
Are there any other questions? If not, I thank Ian Jardine and Peter Rawcliffe. That was an interesting and fulfilling session. We now need to decipher the Official Report to decide which areas we should die in the ditch for. I appreciate your help and welcome your evidence. Thank you very much.
My opening remark will be very short, convener. As members can see, we are three. Basil Dunlop comes from Highland Council—the Cairngorms—and I come from the Loch Lomond and Trossachs area. Tim is holding the jackets for us all. We do not need to say a great deal by way of a statement. The shortness of our submission reflects COSLA's contented, relaxed attitude to the legislation. We do not feel it necessary to be critical of the legislation. We invite questions. It may be appropriate for either Basil or Tim to provide the answers.
Thank you. I open the discussion to the committee.
Concern about the Sandford test—the primacy of conservation over all other issues—is a theme that runs through many submissions. You raise concerns about unqualified application of the Sandford test under section 8(6) and about the effect that that might have on the co-ordinated delivery of the aims. Will you expand on that?
I will come back to that question, but Tim Stone may be the best person to answer it.
Our concern, which to some extent has been alleviated by the changes made to the proposals since the consultation, is that the bill still gives primacy to environmental and cultural aspects. That could result in a proposal for development that the park authority felt was appropriate, in the round, for the overall development of the park and that met the overall objectives being seen as having environmental or cultural disadvantages under the terms of the bill. The provision that says that, if there is a conflict, additional weight will be given to the aim set out in section 8(3)(a) could mean that social and economic sustainability as well as environmental sustainability would not be achieved.
Can you envisage a practical example of where a conflict might arise?
We understand that if the national park authority identified an area where economic development would be appropriate but others felt that environmental or cultural aspects of that area should be preserved, there would be an opportunity to challenge the authority.
The key to the avoidance of conflict is to have a park plan that is written with wit and is accepted by all concerned. The national park plan will try to avoid conflict at all costs. We realise the importance of the Sandford principle, but everything that national park authorities do should be with an eye to avoiding reaching a point of conflict at which the principle would have to be invoked.
Do you think that it would be a good idea to include an element of internal zoning?
Zoning is an all-important principle, as specific land-use policies must be prioritised in certain areas. In the core of the Cairngorms, the priority would be nature conservation, but the priority on the periphery of the area might be development with environmental safeguards.
I would like to talk about consultation over designation. In your submission, you suggest that there should be scope for comment on a proposed designation order before it is laid before Parliament. What changes would be required in the bill to provide for that?
We set that out on page 3 of our submission, which deals with section 5 of the bill. We identify the fact that it would be possible for the Executive to receive a report that made recommendations and then to bring forward a designation order that went contrary to those recommendations. The bill says that ministers have to "have regard to" a report, but it does not say that they have to follow it completely. It is appropriate that the minister can change the recommendations, but we are concerned that there would not be time to allow those who have expressed interest to the reporter to make further comment on what the minister is proposing before those proposals are laid before Parliament. We are suggesting an extra six weeks of delay to allow that to happen. That would not be a formal consultation process, but it would allow comment to be made. There should then be a requirement on the minister to provide the Parliament with a summary statement of what comment had been made.
I would like to ask about consultation. In paragraph 3 of your submission, you properly point out the risk that, if we go down the primary legislation path, it may be difficult to programme sufficient time to designate the subsequent national parks—although we understand that ministers may have only one more national park in mind. Is there not a reverse difficulty? Some of us feel that if the process goes through the secondary legislation route, this committee will have little input. We are concerned that the people who are affected by the designation orders, and who will make representations to us, will have little handle on the process through us. How strongly do you feel that the secondary legislation is important? SNH indicated that it had accepted that that is the route that would be taken—largely because that is what it is used to with Westminster legislation, rather than because of any first principles. Is that something that you expect to happen, but do not feel all that strongly about, or do you feel that it is critical that we should go through this two-stage procedure?
In Loch Lomond and the Trossachs, it is difficult to divorce the COSLA stance from a more local or personal stance. We have lived with the idea of there being a secondary process for so long that local people, businesses and farmers now expect the designation order process to be gone through. Lots of people have been keeping their powder dry because of the importance of the boundary issues and so on. Whether or not we are convinced that that process is the proper one, it has been so well heralded that it would be almost impossible to withdraw from it—certainly in the Loch Lomond and the Trossachs area. Personally, I welcome it.
The trouble is, you might keep your powder dry and find that the battle is over before you got your guns loaded.
Yes, that is true.
There are far too many military analogies in the committee this morning.
We bow to the committee's greater experience, but we thought that there would be scope for you to invite the minister to explain the Executive's position and for you to take an interest in the secondary consultation exercise. That process could be quite extensive; we do not expect that it will be short, unless there was general agreement. The nature of the exercise, as we see it, is not to introduce national parks over the dead bodies of the interested parties around the national park area. The process that has been outlined gives plenty of scope to include anything up to public inquiries. We expected that that would allow scope for the committee to take a deep interest in what was going on.
What powers do you understand will be available to the national park authority through proposed byelaw powers over land and water? Will those powers be adequate, or can you see deficiencies?
That may be a general question for local authorities. It is my council's belief that the whole permitted development issue needs to be reviewed. It has been a long time since we have had such a review. Additional considerations in relation to telecommunications masts and so on have been a thorn in the side of most authorities—rural ones in particular. I believe that there should be a review of permitted development powers.
You will see from our submission that we are saying that it is not clear to us precisely what the powers are. From a COSLA perspective, I can say that—with the exception of telecommunications masts, on which we have made specific proposals—there has not been a push from authorities for significant changes in the byelaws and planning powers. How that relates to the specific interests of national parks is another thing. I listened with interest to what SNH had to say this morning. I cannot say that COSLA sees a particular difficulty here. Of course, we do not yet have experience of national parks.
Would COSLA have a view on the desirability of having self-contained and comprehensive byelaw powers specific to the national parks authority and setting them in the bill?
No.
My next question has already been answered in part. You suggest that controls over the public bodies could be built up in the first instance via concordats, via the Executive and by voluntary negotiation with individual national park authorities. How would that work in practice where a conflict emerges? Do you think that additional powers might be necessary? Can you outline what they might be?
The starting point for our response was that many of these issues are reserved matters and they would have to be dealt with as realpolitik, by trying to get negotiated solutions. We do not regard it as inappropriate to go down that route. We also made the point that where the Scottish Executive or, for that matter, the UK Government have influence over bodies, one would expect them to use it, given that they have gone to the trouble of setting up the national parks in the first place. That balance of interests struck us as the appropriate starting point, but it is not to say that down the line we will not find difficulties that can be resolved through Scottish legislation.
I want to raise the vexed issue of speedboats, jet-skis and other light craft. I was interested by what you said about them in your submission. You said:
The double negative is there because, to be honest, we do not know. We discussed this issue in our working groups and there was a feeling that in the case of Loch Lomond there were some powers. However, we were not entirely clear to what extent those powers have been fully utilised and to what extent they have been found wanting.
The committee probably knows that the Loch Lomond Park Authority, as was, had limited byelaws. The park authority and others recognised that those byelaws did not go far enough. However, the problem in Loch Lomond and the Trossachs is that the emphasis tends to be on Loch Lomond, even though there are many other lochs in the Trossachs area. We must be careful not to introduce very strict byelaws for Loch Lomond but not for other lochs. Any byelaws must be universal. We must have the power to introduce universal byelaws for all national park areas and we believe that byelaws should be stronger than they are at the moment.
I accept that. There are special circumstances that apply to Loch Katrine.
Loch Katrine is very restricted because of West of Scotland Water's policy towards it.
I would like to touch on planning. We have already referred to the representations that have been made by the Royal Town Planning Institute and the Scottish Society of Directors of Planning about the possible separation of planning powers. Paragraph 5 of your submission does not address that issue in particularly elaborate form, but it implies that you are content with the separation of powers because you envisage a different regime in different park areas. I will make you a tempting offer and ask you to tell us why you think the planners are wrong.
This is one issue on which Basil Dunlop and I probably have a totally different view. We are meant to be here representing COSLA, but I keep talking about Loch Lomond and the Trossachs, where development control matters are already being dealt with by the interim committee. So far, there has been no problem. We never thought that there would be.
That is why I picked it.
It is a unique situation. I am sure that Basil Dunlop has something to say on this issue.
Before we hear from him, Councillor Thomson, are you saying that, based on your current experience, you do not see any difficulty in the local plan continuing to be the responsibility of the local authority and development control being a function of the park authority?
In my opinion, it would be logical and sensible to consider the national park area as a separate local plan area. I do not see any problem in operating through the three authorities that exist in that area at the moment, but I am quite sure that in the fulness of time the national park will become a local plan authority.
I have no problem with the COSLA position, which is the same as that set out in the bill—that there should be different planning systems for different parks. Local wishes come into this, and there is perhaps a difference of opinion between people in Loch Lomond and the Trossachs and people in the Cairngorms area. The local authorities in the Cairngorms area are of the same mind and believe that planning powers should be retained by the authorities. That may be because the possible boundaries of any national park in the Cairngorms would cut through five local authority areas. There are quite large differences in the populations and social set-up of the various areas. There is, for example, a great difference between the Aviemore area and the Braemar area. However, we are quite happy for this issue to be debated at the designation stage.
Tim, would you like to add anything?
I am quite happy with what has been said.
In the light of the answers that have been given so far, I will direct my next question at Gillie Thomson. It relates to local accountability. One of the strengths of planning is that it is done by committees composed of elected councillors.
What is set up at the moment has not been the subject of any criticism so far, but I might take issue with the idea that it is the public's perception that planning authorities are accountable. I could point you to at least 50 community councils that would say exactly the opposite.
I do not know this as a matter of fact so, if I am wrong, please forgive me, but I get the impression from some of the evidence that I have seen that the Grampian partnership body is made up of councillors for the wards in the area. In the Loch Lomond area, however, councillors from areas in the national park would not necessarily be the council's representatives on the park authority. Is that a possible discontinuity that could give rise to some discontent?
The short answer is yes, of course there is. However, if the national park authority saw fit to appoint nobody but elected councillors to make up the proposed 50 per cent of the planning sub-committee, I think that it would be asking for trouble in any case. If the planning process is to be kept open, there must be people on the planning sub-committee who are not elected members from the component councils. That is the model that we have adopted at the moment, and it seems to be working pretty well.
Part of the planning argument might be that planning is part of a much more integrated process that goes well beyond the narrow confines of town and country planning. Planners are deeply involved in transport and housing strategies and in a range of different local authority activities. Are councils concerned that some input from the people and some of the connectivity of the whole system might be lost by taking development control and local planning out of council responsibility and giving it to a national park authority? That would mean that the local authority would cease to integrate those areas into the council's work, services and forward planning.
That is possible. However, I believe that if the park authority became a local plan authority in the long term, robust structure plans would always be the guide. The structure plan, the national park plan and all development plans must be integrated.
I was thinking more of the role that planners play in relation to the rest of the council. Other departments and committees give a perspective on planning matters. If one removes the planners, puts them under a different employer, relocates them and gives them different imperatives, does one lose the role that planners can play in general terms in relation to the rest of the council?
I do not think that that will happen, nor should it. I concede that there is a possibility that it could happen, but I do not think that it will. The networks exist.
I am interested in your perspective, from the point of view of experience.
I am sold on it, but Basil Dunlop may have a different opinion.
We have a different system in the Highland region, where we have local area planning committees. For instance, there is a committee for Badenoch and Strathspey that would have an interest in the Cairngorms area.
I would like to return to the previous question that Murray Tosh asked. When I read COSLA's submission, I was surprised that no reference was made to the make-up of the board of the national park authority, or to the fact that it will be a quango. What are your views on that?
We have commented on that in our submission to the Rural Affairs Committee, but we have not commented on the fact that the national park authority board will be a quango. We have accepted that and that there will be a 50:50 split between council-nominated appointees and directly appointed persons.
You have accepted it?
In the context of the parks' being centrally funded.
I was interested in your comment, Gillie, that a local authority allocating all of its 50 per cent of places to councillors would be asking for trouble. Is that what you said, or did I misunderstand?
No. If the board comprises as few as 20 members, of whom only 50 per cent would come from councils, it is a stone-cold certainty that councils will put elected members on that board.
I misunderstood. You reckon that the 50 per cent will be made up of elected councillors?
That is the proposal in the original legislation, which is the only model that we have to go by.
You have that option, but you do not have to fill all your places with elected councillors. How do you feel about local accountability? Local councillors are elected and are therefore accountable locally, but if the council chooses which councillors to place on the national park authority board could that board be said to be accountable?
The only concrete model that we have is the interim committee for Loch Lomond and the Trossachs. Stirling Council ensured that all members who have a ward in the national park were automatically appointed to the interim committee. Whatever proportion of nominations Stirling Council will be allocated in the long term, if we follow that model I foresee nothing different happening. Within the council, we have always guaranteed that we will appoint to the board members whose wards are within the national park. I cannot speak for any other authorities, but they will probably go down the same road.
Is your authority likely to follow that example, Basil?
No, not entirely. It is difficult to anticipate who Highland Council would nominate for the national park authority. We would hope that it would nominate local councillors who live and work in the Badenoch and Strathspey area—that is, within the park area—because of the clause that states that board members should have specialist interests and specialist knowledge of the area.
I am concerned about local community activists and so on, who may feel that they could have an input and that the council should perhaps consider them. However, as you say, it is up to each individual council.
We feel that the local authority nominations should all be elected councillors, but that the other nominations could be open to members of local community groups.
So we are talking about 20 people being placed on the board.
Yes.
None of them will be directly elected.
No.
I would like to qualify my previous answer on the membership of the board. We have a leaders' meeting on Friday. What I have talked about are recommendations that we will put forward at that meeting as our policy position.
Would it be fair to say that COSLA is happy with the proposal of a quango as half of that board is guaranteed to be made up of councillors who have been picked by the appropriate councils?
No. It would be fairer to say that we accept that the board will be a quango, in the context of the largest part of the funding coming from central Government.
I have a fairly straightforward question on the national park plans. In its submission, COSLA suggests that the national park plans should be identified as "a material consideration" in paragraph 15 of schedule 5. For the uninitiated such as me, who are not planners, could you outline the benefits of using that phrase and the potential consequences of failing to define the plans in that way?
I am not a planner either. The phrase is recognised language rather than anything else. Tim will have a better explanation.
"Special attention" is not a phrase that is familiar to planners; "material consideration" is a well understood phrase, meaning that people have to take proper account of something. If we duck that question now, you will be able to ask it of the SSDP and the RTPI, from whom you will receive evidence after us. They would be better able to go into the detail.
You mention in your submission that you
The period of five years is a suggestion or a sighter. The English legislation specifies five years. If, judging from the English experience, somebody could suggest why five years is not appropriate we would be happy to listen to them. The reason for including the reviews in legislation harks back to the discussion that we had before. If they are in legislation, they should happen; if they are not in legislation, and are simply an aspiration, they are likely not to happen.
Do you not think that each national park plan should be left to define itself according to its own circumstances? We have already discussed horses for courses and why every park should be different.
This is possibly a recognition that we have a movable feast: the park plan, in the first instance, will be written by first-timers—people with no experience of writing a national park plan. It is only right and proper to secure a specific time to revisit what has been written and ask whether it is relevant, or whether it is a load of nonsense in places. I do not think that it is a crucial part of the legislation—but it is right and proper—if the designation of national park plans is contained in the designation order. In that case, the review period should also be included, to provide a fall-back position, in a sense.
Among the other matters that you covered in your submission, the question of VAT caught my eye. What are your concerns about that? You suggest, about section 19 of the bill, that national park authorities
We are not clear about whether they would have to pay VAT. If they do, and if they enter into joint agreements with councils, VAT would have to be loaded on to any agreements about cost transfers to do work. Essentially, we aim to get clarity on that. We have come across examples of organisations that have paid VAT, whereas councils do not. That complicates life.
So this is a practical financial issue for local government?
Yes. We raised the matter in the hope of clarification.
Are there any more questions to our colleagues from COSLA? If not, I thank Gillie Thomson, Basil Dunlop and Tim Stone for coming. I know that you have many hats to wear, but you have worn them well.
As members will be aware, Mick Stewart and I represent the two candidate national park areas—I am from Highland and Mick is from Stirling. The SSDP's position is very clear: we believe that a park-by-park, secondary legislation approach for the delivery of town and country planning is the appropriate way forward.
You have introduced some of these issues already, but I would like to be more specific. In your written submission, you raise concerns about the need for legislation
For example, Aviemore is still a community at the crossroads, despite the considerable amount of public money being directed there. Part of the development in Aviemore is in Dalfaber. Dalfaber is right on the edge of the River Spey, which is a Natura 2000 site under the European designation.
You raise concerns about the priority given under the Sandford test, and you suggest an amendment to section 1(2)(c). Could not that undermine the protection of the natural heritage of the national parks?
No—we are very much committed to the natural heritage. That is, after all, one of the primary reasons why the candidate areas have so far been identified and why future national parks will be identified. We are fair and square behind the Sandford test, but we believe that the national park plan should also have a part to play. It is for that reason that we invite the committee to consider the insertion of the additional words that we have proposed at the end of section 1(2)(c). That paragraph reads:
You say that legislation should make
No, I see this as a specific circumstance of the national park. There is no doubt, from everything that I hear from colleagues and everything that I read, that the Loch Lomond and the Trossachs candidate national park has considerable public support. In parts of the Cairngorms, the jury is still out. Public support should be part of the requirement and SNH is beginning to take the matter seriously—all credit to it for that—in the preliminary work that it has been asked to do by Scottish ministers. I hope that, if it were to be the reporter for the purpose of section 2, it would consult widely in the community in the Cairngorms before reporting to ministers.
Your submission notes concerns about the lack of opportunity for further comment between the making of a draft designation order and its confirmation by Parliament. Will you explain the approach that you would prefer, bearing it in mind that once a designation order has been laid before Parliament under the affirmative procedure, it has no power to amend it—it can only approve or not approve?
Our approach is similar to that which had been proposed for the approval of the park plan. One goes through a due process to arrive at what the designation order will be. The final decision on the designation order lies with the Scottish minister, but that could be quite different from the designation order that went through the consultation process. Therefore, if the Scottish ministers intended to increase the area and include a village that was not previously included, there would be no opportunity for the village to have its say in that it had not been consulted. Our proposal is to provide the opportunity for comment to be made before the designation order is confirmed, where it deviates to a great extent from the draft.
This comes back to the underlying question about whether there should be primary legislation at the second stage. Will you comment on that?
The matter could be dealt with through secondary legislation as long as there was the opportunity to comment. There is due provision for a public inquiry into the designation, but at the final decision-making stage, if the Scottish ministers decide to move a long way from the recommendation, there is no second opportunity to comment on it—our approach is to provide that second opportunity to comment.
Would that be sufficient?
Yes.
I will touch on the planning matters that have recurred during the discussion.
The society is clear that it does not feel that the middle option in section 9 is appropriate. The planning powers should lie with either the park or the existing local authorities, with the exception of structure plans, which we believe should remain the responsibility of the existing local authorities.
As John Rennilson said, it is important that there is a link between policy makers and those who make the implementation decisions with regard to granting or refusing planning permission, which is development control. That link is essential. It is also essential for the close link between the officers who are advising the decision makers on policy and development control.
Councillor Thomson indicated that his preferred solution in the Loch Lomond and the Trossachs area would be for the local plan function to go with the development control function, perhaps in the not too distant future. Does that raise potential difficulties at the edges of the national park boundary? Could there be conflict between the local plan for the surrounding areas and areas within the local plan, which might have stronger connections in most respects with the rest of the local authority area rather than the rest of the local plan area? How do we resolve those difficulties?
The resolution has to be through the structure plan, because it is all-important. It is important to recognise the contribution that national parks will make to meeting the development strategies of the local authorities around them.
Because the bill is primary legislation, it has to anticipate further national parks in Scotland, some of which could be wholly in one local authority area—Ben Nevis, Wester Ross or north-west Sutherland. If the parks became the structure plan authority, we could be in the crazy situation in which there might be four or five participants in a Highland structure plan, all with very different objectives. Conversely, if they were structure plan authorities in their own right, we would revert to the pre-1975 planning situation, when, for example, Lanarkshire was a county council, but Airdrie, Coatbridge, Hamilton, Motherwell and Rutherglen were all white areas with different planning policies. We need to keep a measure of co-ordination, and that is provided by the structure plan.
Similarly, if the national park plan had been approved by Scottish ministers and the proposed structure plan did not agree with the park plan, it would be up to ministers to modify the structure plan to take account of the park plan or to ask the planning authorities to modify the structure plan. Conversely, ministers could suggest to the national park authority that the park plan be modified to take account of the structure plan, which would reflect the strategic direction of a larger area and would be trying to meet other objectives.
Ruling out the middle option of a division of control and responsibility, is the Scottish Society of Directors of Planning neutral on the alternatives of continued local authority control or national park authority control?
Yes. It is horses for courses.
Fair enough. Would you clarify a comment in your submission that struck us as potentially significant? In your submission, you welcome the expansion of sections 10 and 11 of the bill, which are about improving consultation. However, you then say that
I had hoped that I had clarified that in the following three paragraphs. It is a point that you took up previously with COSLA about the question of introducing a new definition: "special attention". You have had a useful debate with other witnesses about the phrase "have regard", which has a track record, and section 25 of the 1997 act includes the phrase "material consideration"; we think that it is inappropriate to add a further phrase. People will want to know how "special attention" differs from the other two and why we are not following one of the two, well-trodden paths.
We understand that. Our confusion relates to the introductory sentence on sections 10 and 11. The meaning was not particularly clear. Thank you for that clarification.
In the final paragraph, you introduce the idea of a flexible three-year rolling programme as part of the national park plan. Would it be a good idea to build that into the legislation?
That would show the clear commitment to national funding and responsibility for the parks—they are national parks. The society sees the park plan as having a medium to long-term life; a reporting document would provide an opportunity for members of the Parliament or one of its committees to debate and clarify whether the park was going in a direction appropriate for Scotland. It would be a reporting mechanism and a bidding mechanism. In our view, that would be beneficial.
Although we have been promised national funding, I am concerned on behalf of local authorities about their funds being diverted to other agencies or being used directly to fund aspects of the parks. I noticed that you raised concerns about additional costs for local authorities in your submission. What might those costs be?
There might be additional costs on the road infrastructure, for example if there is increased traffic or higher design standards. There will be additional costs for buildings, because the quality of development in the national park is expected to be better than it is at present, so any building work that the authority is engaged in will incur additional cost for design and so on. There could be a similar effect on the cost of housing in the area. Scottish Homes might have greater costs in relation to higher design standards and so on. Those are some immediate costs.
I would expect there to be some staffing costs because officers cannot be subdivided. There are specialist officers covering the whole local authority area, and unless the park were to buy those services back, the council would continue to bear the costs.
That would be coupled with the inability to reclaim VAT. What effect do you think that that will have?
Quite simply, it would add a 17.5 per cent cost to anything that the national park did. The grant in aid from central Government would not go as far as had been anticipated.
What about the fact that local authorities do not have that problem and that they might be sharing some services with the national park authority? Could that create problems?
Indeed. As Tim Stone from COSLA said, that is one of the things that adds complications, further administration and bureaucracy—we do not get anything more for the money.
I want to ask a question about your comments on schedule 1 of the bill, particularly the revised wording of paragraph 5(2)(b). Could you expand on that and on your concerns about the omissions regarding community representation?
That is primarily a matter for the politicians, rather than for council officers. Our concerns relate to the membership of the national park. It would be useful to ensure that there was local representation, perhaps from a community councillor or from business interests. There are obvious leaders in most groups of communities. Those people could come from different strands of the community; they need not be appointed simply because they have been nominated as community councillors. Most people would be able to tell which people in a community have that sort of status—that would be in addition to elected councillors, who have a clear democratic mandate.
As there are no other questions, I thank the Scottish Society of Directors of Planning for its oral and written evidence.
I would like to take two or three minutes to make some additional points and to introduce myself as a member of the Scottish executive committee of the Royal Town Planning Institute. I am now retired, but for nine years I was the director of planning for West Dunbartonshire Council and Dumbarton District Council. During that time I was heavily involved with the park authority and Sir Peter Hutchison's working committee. I am a member of the SNH west areas board, which has asked me to point out that that appointment was very recent and that I was not involved in producing SNH's advice to Government. Now that I have got that out of the road, I can start.
Thank you very much. You have raised some issues that I am sure we will want to pick up on.
You have indicated that you are concerned about the fact that there is no stated purpose for a national park in the legislation. Has the institute come to a view on the sort of headings that it would like to be included in a stated purpose?
The institute is headed by a committee, and—as we all know—committees are made up of people with different views. With some trepidation, I would point members back to the Edwards report, which was an English report. It mentioned going back to the first principles of the National Parks Act 1949—preserving and enhancing natural beauty and promoting its enjoyment by the public. The Edwards committee said that it was particularly impressed by the striking quality and remoteness of much of the scenery, the harmony between man and nature that it displays, and the opportunity offered for suitable forms of recreation in a national park. That last point brings us close to the issue of the social and economic well-being of areas and of the people who live in and immediately adjacent to the park. Without proposing something formally on behalf of the institute, I would say that the Edwards report and similar documents offer us ideas and a more substantive purpose than what the bill contains at present.
In the evidence this morning, everybody has argued that the policy and the development control aspects of planning should remain united. When you say that all the planning functions should be kept intact, are you arguing that structure planning should remain connected to local planning and to development control, or would you accept the point that was made earlier that structure planning can be treated separately, as long as the local plan and development control are kept together?
We endorse the view that the structure plan still has the umbrella role of providing strategic guidance for a larger area, which would include a national park authority and other authorities. How the national park plan fits into the structure plan is important.
As that has clarified the matter, some of my questions can fall.
That is correct. We make reference to the Edwards report on two or three occasions and we indicate that in certain circumstances the English experience may have been less than happy. The institute feels, in representing the planning profession, that it is imperative that the policy makers and the people who are doing development control work or enforcement, or are deciding on blight notices, conservation areas, listed buildings and so on, are all delivering the service under the one authority.
I accept that.
We would not go as far as to say that the powers should stay with the local authorities, but there are areas—especially the more remote ones—where there is a better case to be made that the powers should be with them.
That is a tailored response, then, to the Loch Lomond situation—
In that particular case, yes.
I understand.
Your legal advisers may indicate that those powers already exist. The institute went through some of the current legislation to ensure that, built in to the legislation from the start, there would be a requirement to consult or a minister who could be approached as an arbiter and so on.
We all make those mistakes.
To return to my previous question, some organisations have suggested that national parks should be a material consideration and that that would require amendment to planning legislation. You may have heard me say that I am not a planner, so I seek some clarification in easily understood layperson's terms. Will you confirm that your understanding of the current planning legislation is that the national park plan would constitute a material consideration and that no change would be required to the Town and Country Planning (Scotland) Act 1997?
The institute's interpretation of the bill is that the national park plan would become a material consideration. A planning authority is required to determine a planning application first and foremost in terms of the statutory development plan, and then in a sort of pecking order with regard to any other material considerations, of which there is a list. Our interpretation is that the national park plan would be one of those other material considerations, albeit an important one. There may be another school of thought that the national park plan should sit alongside or in some cases above the statutory development plans. If that is the case, that should be clarified and some indication should be given of where that would fit into the statutory planning system.
Is it likely that we would need to change existing town and country planning legislation in order to make the national park authorities statutory consultees in those circumstances where they were not the planning authorities?
Through the general development order there are a number of statutory consultees. National parks do not exist in Scotland at present and I would anticipate that a national park authority would at the very least become a statutory consultee. That would require changes, although I am not sure whether that would be through primary or secondary legislation.
On behalf of the committee, I thank you for presenting the RTPI's case to us. Your written and oral evidence is appreciated.
Members indicated agreement.
There will be a short private session at the meeting on 2 May. The meeting on 3 May will be fully in private. The times will be intimated as soon as possible.
Meeting closed at 12:50.
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